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CIRCUIT COURT OF THE
DISTRICT OF NEW HAMPSHIRE.
X3ST EQUITY.
No ir7e>
THE MERCANTILE TRUST COMPANY,
VS.
THE PORTLAND & OGDENSBURG RAIL
ROAD COMPANY, SAMUEL E. SPRING,
AND OTHERS, TRUSTEES.
PLEADINGS AND EVIDENCE,
E. J. PHELPS,
NOBLE & SMITH, 1- for Complainants.
J. W. FELLOWS,
CHARLES F. LIBBY, for P. & 0. P. Co.,
WILLIAM L. PUTNAM, for Spring, Trustees.
WILLIAM H. LOONEY, for City of Portland.
PORTSMOUTH:
PRINTED UNDER DIRECTION OF THE CLERK.
1 884.
Afv
COPY OF DOCKET ENTRIES.
No. 172.
»
Mercantile Trust Co.
vs.
Portland and Ogdensburg Railroad Co.
E. J. Phelps, Noble & Smith, Anderson,
J. W. Fellows. Haskell,
Putnam. *
October Term, 1880.
Jan. 25, 1881. Bill in Equity filed. Sub. issued.
Feb. 11, 1881. Appearance by deft, corporation bled.
March 31, 1881 Demurrer bled. Haskell appears.
Oct. 12, 1880. To be heard Oct. 13. Heard Oct. 13, Lowell, J.
Feb. 21, 1882. Opinion of Lowell, J. bled.
• Demurrer sustained. Plff. leave to amend in 60 days.
April 20, 1882. Supplemental Bill bled. Sub. issued. Served April
26, 1882. Ret. and bled May 20, 1882.
April 27, 1882. Copy of Bill and Order of Notice served personally on
S. E. Spring and N. Webb.
April 27, 1882. Like copy on W. F. Milliken, May 5,1882, by W. H. H.
(3 copies 1st bill and 3 of amended bill sent to T. H. Haskell,
May 21, 1882.)
June 5, 1882, at rules. T. H. Haskell, appears for P. & O. R. R.
Co. Trustees appear pro se.
Motion to extend time for bling answers, to August rules. - As¬
sented to by Fellows.
August rules, 1882. Answer of P. & O. R. R., and of Spring, et
al., Trustees, bled Aug. 19, 1882.
Stipulation as to printing mortgage, &c., bled.
Time for bling replication extended to October rules, by agree¬
ment.
T % 3 \
May Term, 1883. Time for taking testimony extended.
Deft, to have ninety days in which to take testimony after he is
notified that Complainant has concluded his testimony.
Oct. 27, 1883. Stipulation, and Oct. 29, deposition of Hatch
taken by agreement, and exhibits filed.
Jan. 22, 1884. Deposition A. W. Wilde, taken Dec. 18, '83,
Jan. 3, '84, by cors. filed.
March 18, 1884. Hon. W. L. Putnam appears for Webb, Milli-
ken and Spring, trustees.
March 20, 1884. Motion for appointment of receiver and copy
Bill Equity, filed in S. J. Court, Me., filed.
March 20, 1884. Order of notice issued, served by mail, Phelps,
Noble & Smith, 21st, on J. W. Fellows.
March 28, 1884. C. F. Libby appeared for P. & 0. R. R. Co.
Hearing postponed to April 1.
Heard on motion by Tr. for appointing Receiver, April 1.
Motion for extension of time in which to take testimony on part
P. & 0. R. R. and for Examiner.
April 1. Deft., P. & O. R. R., allowed two months from time
deposition taken by plff. (expert witness at Concord) is filed, in
which to take testimony in reply.
April 1, 1884. William H. Hackett appoined Special Examiner
—Lowell, J.
April. Certified copies of Bill Equity filed by Trustees in S. J.
Court, Cumberland county, Maine district, and decree therein by
Trustee's counsel, 6 witnesses, April, '84, Decree Lowell, J.
April 15, '84. Samuel J. Anderson, receiver, in accordance with
the order of the Court, appoints Wallace Hackett of Portsmouth,
attorney to receive notices and with such other powers as may be
specially required for said attorney by the decree appointing said
Anderson, receiver.
April 21. Decree filed, Lowell, J.
April 21. Motion for enlargement decree authorizing issue by
receiver, filed.
Order notice returnable May 8, 11 a. m. Sent J. W. Fellows
copy April 21, 1884. Notice and copy of motion and order sent
J. W. Fellows, plff's solicitor, April 21, 1884.
Protest of complainant's, filed April 19, as of April 21.
Time for hearing motion of April 21, filed from June 4, Gray, J.
May 28. Receiver's report filed in Sup. Court, Maine, Copy
filed by Mr. Putnam, May 31 ; Deft, deposition taken May 30 and
31, filed.
May 31. Stipulation as to copies and copies mortgage appoint¬
ment of Webb trustee, and deed, Emery to Webb, filed.
June 3, 1884. Petition for amendment to bill, and for leave to
intervene, filed by City of Portland.
June 4. Plff. moves to discharge the receivership.
J une 4. Petition of City of Portland for leave to intervene as
party complainant allowed, Gray, J. Complainant moves to limit
subpoena to be issued to new parties. W. H. Looney appeared for
City of Portland.
June 4. Additional complainants appear. Sundry copies of
original mortgage, appointment of Webb, deed, etc., filed.
Copies of same attested by the clerk filed as per agreement
May 31.
June 4. City of Portland petition to amend bill, filed.
Ordered that notice be served on Trustees of 1st and 3d mort¬
gage bonds, to each plead, answer or demur to the bill in this case
by 23d June, and that no order is necessary to be issued to A. P.
Carpenter.
June 4. Plff. moves to dismiss the petition of the City of Port¬
land, denied, Gray, J.
June 4. Plff. moves to vacate the receivership, and discharge
the same.
June. Hearing 4 and 5—,Gray, J. Motion of plff. denied.
June 5. Decree as to issue of additional certificates by receiv¬
er filed (copy sent P.)
July 8, 1884. Receiver's bond filed.
July 16. Stipulation as to certain evidence filed.
August 1. Drummond and Drummond appeared for City of
Portland.
Note.—Copies of all papers referred to in page 172 of the rec¬
ord, have been duly and severally filed.
Attest, WILLIAM H. HACKETT, Clerk.
r73 at, AAf
IN THE CIRCUIT COURT OF THE UNITED STATES
FOR THE DISTRICT OF NEW HAMPSHIRE.
MERCANTILE TRUST COMPANY
vs.
THE PORTLAND & OGDENSBURG RAILROAD COMPANY.
JUST EQUITY.
To the Honorable the Judges of the Circuit Court of the United
States of America for the First Circuit within and for the
District of New Hampshire—sitting in Equity :
The Mercantile Trust Company a corporation organized and existing
under and by virtue of the Laws of the State of New York, having its
principal office in the City of New York in said State, suing as well for
itself as for all others who are in like interest with the Orator as herein¬
after stated and set forth and who may be entitled to apply to the juris¬
diction of this Court and who may choose to come in and become parties
to this Bill and contribute to the expense thereof, brings this its Bill of
complaint against the Portland and Ogdensburg Railroad Company, a cor¬
poration chartered and existing under the laws of the State of New
Hampshire, and complains and says, that the said Mercantile Trust Com¬
pany is a citizen of the State of New York and the said Portland and Og¬
densburg Railroad Company is a citizen of the State of New Hampshire.
And thereupon your Orator complains and says that the said Portland
& Ogdensburg Railroad Company was authorized bv ah act of the Legis¬
lature of the State of New Hampshire approved the seventeenth day of
Julv A. D. 1809, to locate and construct its railroad from the west line of
the State of Maine through Conway, Bartlett, Hart s Location, Crawfords
Grant, Carroll, Bethlehem and Littleton, provided however, that in case
said Corporation found it impracticable to locate and build a railroad on
account of the grades between Littleton village and St. Johnsbury, Ver¬
mont and not otherwise it could locate and build the same via Carroll,
Whitefield and Dalton to the easterly line of the State of Vermont in ac¬
cordance with the provisions of the general statutes, Reference being
had to said statutes.
And your Orator further says that the Portland and Ogdensburg Railroad
2
Company under and in pursuance of the laws of the State of Maine, locat¬
ed and constructed a railroad from Portland in the State of Maine through
the Counties of Cumberland and Oxford in said State of Maine to the line
of the State of New Hampshire and the said defendant thence 011 the
route prescribed by the above named act passed by the Legislature of the
State of New Hampshire and in accordance therewith proceeded to con¬
struct its Railroad through Bartlett to the Fabyan Place so called a dis¬
tance of about forty miles and has also constructed and set in operation
about five miles of said railroad at the extreme western end of its route
and the whole of said constructed portions of said railroad between Port¬
land and the western line of New Hampshire now and for a long time
have been in operation and use and are now run over by cars and engines
carrying the United States-mails passengers and freight and is earning
tolls.
And your Orator further shows unto vour Honors that 011 the first dav
is %J
of November A. I). 1871 in accordance with a vote of its stockholders the
said Company by its deed of that date duly executed and acknowledged,
a copy of which deed your Orator annexes hereto and prays leave to re¬
fer to the same as a part of its bill of complaint, conveyed in trust and in
mortgage by virtue of the laws of the State of Maine and New Hampshire
to Samuel E. Spring William F. Milliken and George F. Emery their
survivors and successors. "All of the Railroad of said Company located
"and to be located in Portland in the State of Maine and thence to its
"terminus at the western boundary line of the State of New Hampshire
"with all the rolling stock stations fixtures and franchises thereof and ap¬
purtenances thereto belonging now owned or held or that may hereafter
"be acquired by said Company also any and all rights that may be ac-
"quired by lease or contract in any railroad forming part of the through
"line from Portland to Ogdensburgh, with all lands and tenements now
"taken or held by said Company to build maintain and operate said rail-
"road granted or to be hereafter granted by said States of Maine and New
"Hampshire together with all the cars engines and ether movable furni¬
ture machinery and equipment of said Railroad Company and all other
"personal property of said Company appertaining to and connected with
"the customary use and working of said railroad and machinery thereof."
And said mortgage deed was duly recorded as required by law and it
was conditioned to secure the payment of the negotiable bonds of said
Company to the amount of Thirty Three Hundred Thousand Dollars all
bearing date the first day of November A. D. 1871 and payable in gold
coin, in the city of Boston Mass. 011 the first day of November A. D. 1901
with interest thereon at the rate of six per cent per annum in like gold,
011 the first dav of May and the first dav of November in each and every
•j «/ %j
year in the city of Boston 011 the presentation of certain semi-annual cou¬
pons thereto annexed: and said mortgage and bonds constitute a valid
and legal claim upon all said property and against said Company accord¬
ing to the time of the same.
And said mortgage deed provided that a portion only of said bonds
amounting in the aggregate to the sum of Twenty-five hundred thousand
dollars should be issued to provide for the construction equipment and
completion of the whole of said Railroad and that the remaining Eight
hundred thousand dollars to be appropriated to and to be used only for
liquidation and removal of a prior encumbrance 011 that portion of said
Railroad extending from Portland Maine to Bartlett New Hampshire.
And your Orator further showed that about the sum of Nineteen hun¬
dred thousand dollars of said bonds were issued and sold and are now
held by bona fide holders for value who purchased the same upon the se¬
curity of said mortgage. And the funds so received were used mainly in
the construction and equipment of said railroad lying between said Bart¬
lett and the Western Line of New Hampshire and without which the
same would not have been constructed and equipped.
And your Orator further shows that it is the owner of Eighty of said
bonds of the par value of one thousand dollars each which it received
while current in the regular course of business and that the interest cou¬
pons on said bonds were duly paid to and including the coupons due May
first A. D. 1876: that 011 the first dav of November A. D. 1876 default was
made by said Company in not paying the interest coupons falling due on
that day and not only that but all interest coupons falling due since that
time were and still remain unpaid, and said Company have neglected and
refused to pay your Orator said coupons according to the tenor of the
same and said Company on said first day of November 1876 became and
was and still remains insolvent, as vour Orator is informed and be-
lieves.
And your Orator further shows that the Roadway of said Company was
first located secured and constructed under the provisions of the laws of
Maine and New Hampshire from Portland aforesaid to Bartlett aforesaid,
a place about eleven miles west of the Maine and New Hampshire State
line, that before or at the time or during the progress of said construction
from Portland to Bartlett the said Company under and in virtue of the
laws of Maine and New Hampshire on the first dav of November A. I).
1870 executed a trust or mortgage deed to Woodbury Davis Samuel E.
Spring and Weston E. Milliken their survivors and successors conveying
in trust "all that part of the Railroad of said Company extending and to
"be extended from the terminus in Portland in the State of Maine to
"Bartlett in the State of New Hampshire located or to be located within
"said limits including all the rights of way and lands taken and held or
"to be hereafter taken and held within said limits in the States of Maine
"and New Hampshire by said Company for the purpose of its road and
"all the franchise of said Company to build and maintain and operate said
4
"railroad from Portland to said Bartlett, granted or to be hereafter grant¬
ed by said States of Maine and New Hampshire and all the superstruc¬
ture of said railroad between said limits of Portland and Bartlett to¬
gether with all cars engines and other movable furniture machinery and
"equipment of said road and other personal property of said Company
"appertaining to and connected with the customary use and working of
"said railroad and the machinery thereof," to secure the payment of the
bonds of said Company to the amount of Eight hundred thousand dollars
all dated November 1 1870 and payable on the first day of July A. D.
1900, with semi-annual interest7 coupons annexed, payable on the first day
of January and the first day of July in each year. Principal and interest
payable in Boston Mass. in gold.
And your Orator is informed that all said last named bonds were issued
and sold and the proceeds thereof used in constructing said road lying
between Portland and Bartlett as aforesaid and in the purchase of a cer¬
tain limited amount of equipment such as cars engines and railroad fur¬
niture and machinery but to what extent said railroad was constructed or
what amount of equipment and other property was purchased out of
funds derived from the sale of said bonds, this complainant is unable to
sav.
And your Orator shows that the last named mortgage and bonds are
the same incumbrance mentioned in said mortgage deed of November 1
1871, for the removal and liquidation of which Eight hundred thousand
dollars of the bonds issued under said mortgage of November 11871 were
specially appropriated to pay though your Orator is informed and be¬
lieves that the holders of the bonds under the mortgage deed of Novem¬
ber 1 1870 refused or were unwilling to receive them in exchange and
that said Eight hundred thousand dollars of bonds of the mortgage of
November 1 1871 were not and could not be otherwise disposed of so as
to effectuate the purpose named in said deed.
And your Orator shows that it is informed and believes that all of said
bonds dated November 1 1870 are now outstanding. That all of the in¬
terest coupons on said bonds heretofore maturing have been paid to the
holders of the same out of funds derived in part from the money paid for
or on account of your Orator's bonds and other bonds issued and sold un¬
der the mortgage of November 11871 and also out of the avails and earn¬
ings of property purchased and secured to said Company out of said last
named mortgage and bonds.
And your Orator further shows that out of the proceeds of the bonds of
your Orator and the others of the same issue that part of the road of said
Company lying between said Portland and Bartlett was completed and
the road of said Company lying between said Bartlett and the western
terminus of its bridge across the Connecticut Biver to the western line of
the State of New Hampshire making about sixty miles of road, and also
o
out of such proceeds the Company purchased new and additional engines
and cars and other stock and material movable furniture machinery and
equipment and personal property appertaining to and connected with the
customary use and workings of said railroad from Portland to the western
line of New Hampshire which said property, and other property of simi¬
lar character, owned before November 1 1871 and not paid for out of the
avails of the bonds of that date has been used in common on all said
roads by said Company and from time to time exchanged replaced and
renewed and other property substituted for the same.
And your Orator further shows that it does not know and it cannot
know without discovery by said Company, what portion of all the engines
cars machinery equipments and other property of said Company that is
exclusively subject to the mortgage of November 1 1871 and which of
right appertain to that portion of said Company's road lying between
Bartlett and the western line of New Hampshire upon which road and
property your Orator's bonds are a first and prior lien.
And your Orator is informed and believes that the net earnings of that
portion of said Company's line lying west of Bartlett's aforesaid are large,
but whether sufficient to pay the coupons on the bonds of Nov. 1 1871 it
is unable to say and that they are very much in excess of the portion ly¬
ing between said Bartlett and Portland, and it avers that the same what¬
ever it is, ought to be strictly applied to the payment of the interest accru¬
ing upon your Orator's bonds and the others outstanding of that date, and
your Orator is entitled to have the same so applied and also to have said
portion of said road properly equipped and kept in repair without having
any of the income of said portion used for the equipment of the other
portion of said Company's road or having it applied to pay interest on the
bonds of 1870. %
And your Orator is advised and it believes it can have relief only in a
court of Equity where the income and earnings of the whole line, the ex¬
penses of operating and the outlays on account of equipment and other
personal property may be marshalled and divided justly according to the
several interests.
And your Orator further shows that the said ('ompany is insolvent and
without credit and unable to classify and distribute the receipts and dis¬
bursements to the respective rights of the several interests and this can be
effectually done only by some indifferent person under the protection and
authority of this court so as to prevent waste and diversion.
In as much therefore as your Orator is remediless according to the
strict rules of law arid can have relief only in a court of Equity where
matters of this kind are cognizable.
To the end therefore that said Defendant may upon oath full and true
answers make to all and singular the premises as fully and particularly
as if the same were hereinafter repeated and they thereunto distinctly in-
r>
tcrrogated not only according to their knowledge, but according to their
information and belief and particularly that they may answer the sever¬
al interrogatories hereinafter set forth, that is to say :
I. Whether it is a fact that a very large portion of the said engines
and cars and equipment, machinery and other property now belonging to
said Company is the same that were conveyed in and by said trust deed of
November 1 1871 and also state what portion if any has been received in
exchange and substitution for any part of what was so conveyed.
IT. Whether it is not a fact that a large portion of the property so
owned belongs exclusively to that portion of said road lying between Bart¬
lett's aforesaid and the western line of New Hampshire and whether it
was not purchased out of the proceeds of the mortgage and bonds of No¬
vember 1 1871 and specify in detail all of said property.
III. Whether any and what portion of said property lies within and
subject to the jurisdiction of the State of New Hampshire.
IV. Whether any, and if so what portion of the earnings of said Com¬
pany's line lying west of said Bartlett's has been used towards the pay¬
ment of the interest coupons of the bonds under the mortgage of Novem¬
ber 1 1870.
V. Whether any, and if so what portion of the earnings of the said
Company's line lying west of said Bartlett's has been used towards • the
equipment or maintenance of that portion of the line east of said Bart¬
lett's.
YL Whether it is not a fact that the mortgage under which your Ora-
tor's bonds were issued is a first mortgage lien on all that portion of the
Company's line lying between Bartlett's aforesaid, and the west line of
New Hampshire.
VII. Whether any separate account of the earnings or disbursements
of that portion of the road lying between Bartlett aforesaid and the west¬
ern line of New Hampshire has ever been kept by said Company and if
so particularly state the facts about the same.
VIII. State whether it is not a fact that the earnings of that portion of
the property of said Company that is subject to the mortgage of Novem¬
ber 1st 1871, have not been intermingled and confused with the earnings
of that portion of the road and property that is covered by the mortgage
of November 1 1870.
IX. Whether it is not a fact that the said Company has paid the inter¬
est on the bonds issued under the mortgage of 1870, as the same has ma¬
tured and if nay, to what extent has it paid said interest.
X. Whether it is not a fact that said last named interest has been paid
out of the funds accruing generally from the operation of the entire line
and property extending from Portland to the western line of New Hamp¬
shire aforesaid.
XI. Whether the said Company neglected and refused to pay the cou-
i
pons 011 the bonds of November 1st 1871, falling due the first day of No¬
vember 1870, and whether the said Company has paid any of the interest
on said last named bonds maturing since that time.
XII. Whether the net earnings of that portion of the Company's line
lying west of Bartlett's aforesaid and the property appertaining thereto
have been sufficient since 1876 to pay the interest on the bonds of Novem¬
ber 1 1871, and state particularly the amount of net earnings of each year
since 1876, of that portion of the line.
And your Orator prays that an account may be taken by and under the
direction of this Honorable Court of the number and amount of bonds
sold and now outstanding that were issued under the said mortgage deed
of November 1 1871, and the amount due as interest upon the same and
particularly the amount due unto your Orator as interest and that said
Railroad Company may be decreed to pay to your Orator such sum as
may be found due and owing unto your Orator as interest by a day
named together with costs of suit and in default of such payment that
said Portland and Ogdensburg Railroad Company may be absolutely
barred and foreclosed of and from all right and equity of redemption in
and to said mortgaged premises and property lying and being in the
State of New Hampshire and that your Orator may be decreed to have
possession of the same and be decreed to enjov and exercise whatever
franchise belongs to said Company, to own maintain and operate the same
so far as it lies in the State of New Hampshire and whenever by appro¬
priate proceeding your Orator shall have obtained a decree of foreclosure
of the property so conveyed by said mortgaged deed, that lies in the State
of Maine then that your Orator may have right to deal with and control
and possess all of said property in the States of Maine and New Hamp¬
shire as fully as the said Company might, had no default been made un¬
der said trust deed, and in the meantime to prevent waste of said proper¬
ty and the impairment of the security of your Orator and to guard against
any diversion of the earnings and income of said railroad and property
fixed and movable appertaining thereto from Bartlett west to the western
terminus of the road of said Company to any other purpose than its ap¬
plication upon the bonds and interest coupons secured by the mortgage
of November 1 1871, a Receiver or Receivers be appointed by the court to
take charge of the said railroad so situated in the State of New Hamp¬
shire and the property appertaining thereto, and run and operate the
same and cause such needful and proper repairs to be made thereon as
shall be requisite for the maintenance and preservation of the property
and also keep strict accounts of the receipts and disbursments, on account
of said property and distinct accounts of the same lying between said
Bartlett and the eastern line of New Hampshire and between said Bart¬
lett and the western line of New Hampshire.
And that vour Orator mav have such other and further relief in the
« *.
s
premises as the nature of the case shall require, and to your Honors shall
seem meet.
May it please your Honors to grant unto your Orator the writ of sub¬
poena of the United States of America to be directed to the said Portland
and Ogdensburg Railroad Company the Defendant aforesaid, therein and
thereby commanding the said Defendant on a day certain, to be named
and under a certain penalty to be and appear before this Honorable Court
then and there to answer all and singular the premises and to stand to
perform and abide by such orders and decree as may be made against the
said Defendants in the premises and as shall seem meet and agreeable
to equity and good conscience.
And vour Orator as in duty bound will ever pray etc.
THE MERCANTILE TRUST COMPANY,
By Louis Fitzgerald, President.
United States of America, Southern District of New York. ss.
Louis Fitzgerald being duly sworn deposes and says that he is the Pres¬
ident of the Mercantile Trust Company the Complainant in the above
bill; that he has read the same and knows the contents thereof; that the
said bill is true except as to the statements therein made on information
and belief and as to those he believes it to be true.
THE MERCANTILE TRUST COMPANY,
By Louis Fitzgerald, President.
Subscribed and sworn to before me this sixth day of January, A. D. 1881.
Sidney DeKay,
United States Commissioner
for the Southern District of New York.
J. AV. Fellows, of Counsel.
COPY.
Know all Men by these Presents:
That the Portland and Ogdensburg Railroad Company, a corporation
duly established under the laws of the State of Maine, and authorized and
empowered by the Legislature of the State of New Llampshire, to con¬
struct and extend its railroad across the State of New Hampshire, subject
to the laws of said State, relating to railroads, and having its principal of¬
fice for the transaction of business at Portland, in the County of Cumber¬
land, and State of Maine, for the purpose of effecting the several trusts
and securities hereinafter set forth, created and declared, intended to en¬
able and provide, for the more speedy construction, equipment and open¬
ing of the railroad of said Company, and in consideration of one dollar
paid by the grantees and trustees hereinafter named, doth hereby give,
9
grant, bargain, sell and convey to Samuel E. Spring, Weston F. Milliken,
and George F. Emery, all of Portland aforesaid, gentlemen, their surviv¬
ors and successors, as hereinafter designated, all of the railroad of said
Company, located, and to be located in Portland, in the State of Maine,
and thence to its termination at the western boundarv line of the State of
New Hampshire, with all the rolling stock, stations, fixtures, and fran¬
chises thereof, and appurtenances thereto belonging, now owned or held,
or that may be hereafter acquired by said Company; also, any and all
rights which may be acquired by lease or contract, in any railroads, form¬
ing part of the through line from Portland to Ogdensburg; with all lands
and tenements now taken and held, or which mav be hereafter taken and
held by said Company for the purposes of its railroad, and all the fran¬
chise of sa^d Company to build, maintain, and operate said railroad,
granted or to be hereafter granted by said States of Maine and New
Hampshire, together with all the cars, engines and other movable furni¬
ture, machinery, and equipments of said railroad, and all other personal
property of said Company, appertaining to and connected with the cus¬
tomary use and working of said railroad, and machinery thereof.
To have and to hold the premises, with all the privileges and appurte¬
nances thereof, and belonging thereto, to them, the said grantees, their
survivors, and successors, as joint tenants, and not as tenants in common,
upon the agreements, conditions and trusts hereinafter set forth, as fol¬
lows :
Whereas, the stockholders of said Portland and Ogdensburg Railroad
Company, on the twenty-third day of October, in the year of our Lord,
one thousand, eight hundred and seventy-one, at a meeting of said stock¬
holders, duly notified and holden, voted: to authorize the directors to is¬
sue bonds of the Company, to an amount not exceeding thirty-three hun¬
dred thousand dollars, payable in not exceeding thirty years, with inter¬
est semi-annually, at the rate of six per cent per annum, principal and in¬
terest payable in gold; and to secure the same by a mortgage of the road,
located and to be located in Portland, in the State of Maine, and thence
to its termination at the western boundary of the State of New Hamp¬
shire, with all the lands and tenements, rolling stock, station fixtures, and
franchises thereof, and appurtenant thereto, now owned or held, or that
may be hereafter acquired, for the use of said Company, together with any
and all rights, by lease or contract, which may be hereafter acquired, in
any and all railroads, forming part of a continuous line from Portland to
Ogdensburg ; a portion only of said bonds, amounting only in the aggre¬
gate to twenty-five hundred thousand dollars, to be issued to provide for
the construction, completion and equipment of the whole of said railroad,
the remaining eight hundred thousand dollars to be appropriated to,
and to be used only for, the liquidation and removal of a prior incum-
10
brance 011 that portion of said railroad, extending from Portland, Maine,
to Bartlett, New Hampshire.
And, whereas, the directors of said Company, 011 the thirty-first day of
October, in the year of oor Lord, one thousand eight hundred and seven¬
ty-one, voted ; that the bonds of the Company, to the amount of thirty-
three hundred thousand dollars, authorized by vote of the stockholders, at
a meeting held the twenty-third day of October, 1871, be issued as fol¬
lows: three thousand bonds of the denomination of one thousand dollars
each, numbered respectively bv from one to three thousand inclusive;
four hundred bonds of the denomination of five hundred dollars each,
numbered respectively from three thousand, and one to three thousand,
four hundred inclusive, and one thousand bonds of the denomination of
one hundred dollars each, numbered respectively from three thousand,
four hundred and one to four thousand four hundred inclusive, all with
semi-annual coupons annexed; and by vote authorized the president and
treasurer of said Company to execute and deliver a mortgage to secure the
same, and nominated and selected Samuel E. Spring, Weston F. Milliken,
and George F. Emery, all of Portland, to be trustees under such mortgage.
Now if the said Company shall well and truly pay the interest, which
shall from time to time accrue, and become payable, upon any and all of
the bonds of said Company, issued under and in accordance with said
votes, and shall well and truly pay the principal of the same at the ma¬
turity thereof, then this deed shall be void; otherwise shall be, and re¬
main in full force.
It is agreed that the said Company may continue in possession of and
manage the railroad and property aforesaid, so long as it shall punctually
pay the interest and principal aforesaid, according to the tenor of said
bonds, and may from time to time renew and replace any of the personal
property hereby conveyed, by other property of like characters, and situ¬
ated in like manner for the purposes of said railroad, according to the
charter of said Company.
This conveyance is made upon the further trusts and conditions follow¬
ing, that is to say:
First. The said trustees shall certify and give validity by their certifi¬
cate to twenty-five hundred thousand dollars of said bond in the aggre¬
gate, whenever and as fast as the said Company may require; but the re¬
maining eight hundred thousand dollars of said bonds shall be certified
and given validity by the certificate of said trustees, only as the same
may be and are applied to the extinguishment and payment of bonds of
said Company, issued November 1, A. D. 1870, and secured by mortgage
of that part of the railroad of said Company, extending from Portland,
Maine, to Bartlett, New Hampshire, dated November 1, A. D. 1870, and
recorded in Cumberland Registry of Deeds, Book 381, page 202.
11
Second. Whenever a vacancy shall occur in the number of trustees
ts
hereby appointed, or of their successors, by the death, resignation or per¬
manent disability or removal from this State of any one of them, whether
before or after his acceptance of the trust hereof, the surviving and re¬
maining trustees shall immediately take measures to prove the fact of
such vacancy to the Honorable Justice of the Supreme Court of the Unit¬
ed States, who may for the time being be allotted to the first Judicial Cir¬
cuit, and procure the said Justice to nominate and appoint in writing,
some suitable person, an inhabitant of this State of Maine, to supply such
vacancy, and to certify such nomination and appointment upon the back
of this deed ; and the said surviving and remaining trustees shall make
such nomination and appointment known to the directors of said Com¬
pany, without unreasonable delay, and any person so appointed, upon his
acceptance of said trust shall succeed to and have all the powers of the
trustee in whose place he shall be appointed. And as often as any new
trustee or trustees hereof shall be appointed, all the estate, property and
interest, which shall be for the time being holden upon the trusts hereof,
shall thereupon be so conveyed, transferred and assigned by the acting
trustee or trustees, as that the same shall rest and be holden jointly by all
said trustees, to and for the same trusts, and upon the same conditions,
and subject to the same powers and provisions as are herein contained
and declared, concerning the premises and the trustees named in this in¬
strument, so far as the same shall then be subsisting and capable of tak¬
ing effect.
Third. Whenever the trustees shall have entered upon and taken
possession of the property hereby conveyed, for breach of condition, or
for the purpose of foreclosure, if, before any foreclosure is consummated,
the said Company shall have fully satisfied and performed all the condi¬
tions for breach of which the entry was made, and paid all the expenses
incurred by the trustees under such entry and possession, or the same
shall have been satisfied and paid out of the income, rents and profits re¬
ceived by said trustees from working and managing said railroad and
other property, the said trustees shall thereupon relinquish to said Com¬
pany all the control of said railroad franchise and other property, and
any time for which the same shall have been held by said trustees, prior
to any such relinquishment shall not be taken or reckoned as affecting or
leading to a foreclosure of this mortgage.
Fourth. Whenever said trustees and their successors shall be in pos-
ssssion of said railroad and other property, they shall grant all such rea¬
sonable inspection of their accounts, records and proceedings as may at any
time be required by any committee of the directors, or the stockholders of
said Company. And the said trustees shall in no event be personally lia¬
ble for each other, but anv one of them is to be accountable and liable on-
12
ly for his own acts, misdoings and neglect. And the said Company hereby
covenants and agrees, to and with said trustees, that upon the demand of
said trustees or their successors, it will make anv other and further assur-
ance and conveyance to said trustees or their successors of said railroad
and other property held and used in connection therewith as the same
shall be from time to time extended, enlarged and completed, so as to
make the whole of said Company, and the franchise pertaining thereto,
and the other property aforesaid subject to, and liable for the payment
of the bonds, and interest hereinbefore described.
In witness whereof, the said Portland and Ogdensburg Railroad Com¬
pany has caused these presents to be subscribed by Samuel J. Anderson,
President of said Company, and by Horatio N. Jose, its Treasurer, and the
seal of said Company to be hereunto affixed, and the said trustees, in tes¬
timony of their acceptance of the grants and trust hereby made, created
and declared, have hereunto severally set their hands and seals this first
day of November, in the year of our Lord one thousand eight hundred
and seventy-one.
Signed, sealed and delivered
in presence of Portland and Ogdensburgli
James S. Goodwin, Railroad Company, by
Nathan Webb. Samuel J. Anderson, [seal.]
[Seal.J S. E. SPRING, ) President.
Seal.] W. F. MILLIKEN, \ Trustees.
Seal.] G. F. EMERY, ) H. N. Jose, Treasurer.
Cumberland, ss. November 1, A. D. 1871.
Personally appeared Samuel J. Anderson and acknowledged the fore¬
going instrument to be the free act and deed of the Portland and Og¬
densburg Railroad Company.
Before me, Nathan Webb, Justice of the Peace.
[Filed March 31, 1S81.J
Circuit Court of the United States for the Dis¬
trict of New Hampshire.
THE MERCANTILE TRUST COMPANY, Complainant,
vs.
THE PORTLAND AND OGDENSBURG RAILROAD COMPANY,
defendant.
The Defendant by protestation, not confessing or acknowledging all, or
any of the matters and things in the said Complainants' bill to be true in
such manner and form as the same are therein set forth and alleged, doth
demur thereto and for cause of demurrer showeth:
That the Complainant hath not in and by its said bill made or stated
such a case as doth or ought to entitle it to any such discovery or relief
as is thereby sought and prayed for from or against this Defendant.
That the Complainant is the holder of only a small fraction of the
bonds secured by the mortgage sought in its said bill to be foreclosed and
lias not brought its said bill for the benefit of all the holders of these
bonds who are in like interest with itself but onlv for the benefit of itself
and such of said bondholders as choose to come in and become parties to
its said bill.
That the Complainant prior to the bringing of its said bill did not de¬
mand or in any way request the Trustees under the mortgage sought to
be foreclosed nor any one of them to enforce said mortgage for the benefit
of the Complainant either by foreclosure or otherwise and have not made
the said Trustees parties to this bill.
That the Complainant does not show in its said bill of complaint that
said Trustees have been derelict in their duty or have not acted for the
best interest of all said bondholders in the performance of their said trust
or have in any way refused or neglected the full performance of their
lawful dutv in the execution of their said trust.
t
Wherefore this Defendant demands the judgment of this Honorable Court
whether it shall be compelled to make any further or other answer to the
said bill or any of the matters or things therein contained and prays to
be hence dismissed with its reasonable costs in this behalf sustained.
By T. H. Haskell, its Solicitor.
I hereby certify that in my opinion this demurrer is well founded in
point of law.
March 29, 1881. T. H. Haskell, Counsel for Deft.
I Samuel J. Anderson President of the Defendant Corporation in its
behalf make affidavit that this demurrer is not interposed for delay.
Sam. J. Anderson.
Maine District ss. March 29th, 1881.
Personally appeared Samuel J. Anderson and subscribed and made
oath to the truth of the foregoing affidavit. Before me,
Nathan Webb, Commissioner U. S. C. C.
Ill THE CIRCUIT COURT OF THE URI1ED STATES,
FOR THE -
DISTRICT OF NEW HAMPSHIRE.
+•+ —
Mercantile Trust Co. rs. The Portland £ Ogdensburg Railroad
Company*
IN EQUITY.
To the Honorable, the Judges of the Circuit Court of the United
States of America, for the First Circuit, within and for the Dis¬
trict of Hew Hampshire, silling in Equity:
The Mercantile Trust Company, a corporation organized and
existing under and by virtue of the laws of the State of New
York, having its principal office in the City of New York, in said
State, sueing as well for itself as for all others who are in like in*
terest with the orator, as hereinafter stated and set forth, and who
may be entitled to apply to the jurisdiction of this Court, and who
may choose to come in and become parties to this bill, and contrib*
ute to the expense thereof, brings this its amended bill of corn-
plaint against the Portland and Ogdensburg Railroad Company, a
corporation chartered and existing under the laws of the State of
New Hampshire, and Samuel E. Spring, Weston F. Milliken and
Nathan Webb, all of Portland, in the State of Maine, Trustees of
the trust hereinafter described, and complains and says, that the
said Mercantile Trust Company is a citizen of the State of New
York, and the said Portland and Ogdensburg Railroad Company is
a citizen of the State of New Hampshire, and the said Spring,
Milliken and Webb are all citizens of the State of Maine,
2
And thereupon, your orator complains and says, that the said
Portland and Ogdensburg Railroad Company was authorized by an
act of the Legislature of the State of New Hampshire, approved
the 17th ddy of July, A. t>. 1869, to locate and construct its raib
road from the west line of the State of Maine, through Conway,
Bartlett, Hart's Location, Crawford's Grant, Carroll, Bethlehem,
and Littleton; provided, however, that in case the said corpora'
tion found it impracticable to locate and build a railroad on ac¬
count of the grades between Littleton Village and St. Johnsbury,
Vermont, and not otherwise, it could locate and build the same
via Carroll, Whitefield, and Dalton, to the easterly lirie of the State
of Vermont, in accordance with the provisions of the general stat¬
utes, reference being had to said statute;
And your orator further says that the Portland and Ogdensburg
Railroad Company, under and in purshance of the laws of the State
of Maine, located and constructed a railroad from Portland, in the
State of Maine, through the Counties of Cumberland and Oxford,
in said State of Maine, to the line of the State of New Hampshire ;
thence on the route prescribed by the above named act, passed
by the Legislature of the State of New Hampshire ; and in accord¬
ance therewith, proceeded to construct its railroad through Bart¬
lett to the Fabyan Place, so called, in said State of New Hampshire,
a distance of aboiit forty miles ; and has also constructed and set
in operation about five miles of said failrohd at the extreme' west¬
ern end of its route. And the whole of said constructed portions
of said railroad, between Portland and the western line of New
Hampshire, now, and for a long time have been, iri operation aha
used, and are now tun over by cars and engines, carrying the
United States mails, passengers arid freight, and is earning tolls.i
Aiid jrour otatot fhrtlier shows Unto your Honors, that oh the
1st day of November; A. D. 1871, in accordance with a vote of its
stockholders, the said Company, by its deed of that date, duly exe¬
cuted ahd acknowledged—a copy of whicli deed your orator an¬
nexes hereto, and prays leave to refer to the same as a part of its
amended bill of complaint—conveyed in trust and mortgage, by
virtue of the laws of the States of Maine ahd New Hampshire, to
Samuel E. Spring, Weston F. Milliken, and George F. Emery, their
successors and survivors, as Trustees : "All of the railroad of
"said Company, located and to be located in Portland, in the State
3
"of Maine, and thence to its terminus at the western boundary
"line of the State of New Hampshire, with all the rolling stock,
"stations, fixtures and franchises thereof, and appurtenances there¬
to belonging, neiv owned or held, or that may hereafter be ac¬
quired by said Company. Also, any and all rights that may be
"acquired by lease or contract, in any railroad forming part of the
"through line from Portland to Ogdensburg, with all lands and
"tenements how taken or held by said Company : To build, main-
"tain and operate said railroad, granted or to be hereafter granted
"by said States of Main and New Hampshire, together with all the
"engines-, cars, and other movable furniture, machinery and equip¬
ment, of said railroad company, and all other personal property
"of said Company, appertaining to and connected with the eusto-
"mary use and working of said railroad, and machinery thereof."
And said mortgage deed Was duly recorded, as required by law :
and it was conditioned to secure the payment of the negotiable
bonds of said Company, to the amount of thirty-three hundred
thousand dollars, all bearing date the 1st day of November, A. D.
1871, and payable in gold coin, in the Citv of Boston, Massachu.
isetts, oh the 1st day of November, A. D, .1901, with interest there¬
on, at the rate of six per cent, per annum, in like gold, on the 1st
da}* of May, and the 1st day of November, in each and every year,
in the City of Boston, on the presentation of certain semi-annual in¬
terest coupons thereto attached : and said mortgage and bonds
constitute a valid and legal claim upohall said property and against
i : ' ' > f ,
said Cotapahy, according to the tenor of the same.
Ahd said mortgage deed provided that a portion only of said
bonds, amounting in the aggregate to the sum of Twenty-five hun¬
dred thousand dollars, should be issued to provide for the con¬
struction, equipment, and completion of the whole of said railroad,
and that the remaining tight hundred thousand dollars were to .be
appropriated to, and to,be used only for the liquidation and re¬
moval of a prior incumbrance on that portion of said railroad ex¬
tending from Portland, Maine, to taftlett, New Hampshire.
« * ' ^ . #
Arid your orator further shows that about the sum of Nineteen
huhdred thousand dollars of said bonds were issued and sold, and
are how held by bona fide holders for value, who purchased the
same upon the security of said mortgage. And the funds so re¬
ceived were used mainly in the construction and equipment of said
4
railroad, lying between said Bartlett. and the western line of New
Hampshire; and without which the same would not havebeen con¬
structed and equipped.
And your orator further shows that it is the owner of eighty of
said bonds, of the par value of one thousand dollars each, which it
received while current, in the regular course oi business ; and that
the interest coupons on said bonds were duly paid to and includ.
ing the coupons due May 1st, A. D. 1876 ; that on the 1st day of
November, A. D. 1876, default was made by said company in not
paying the interest coupons falling due on that day; and not only
that, but all interest coupons falling due since that time were and
still remain unpaid. And said company have neglected and re¬
fused to pay your orator said coupons, according to the tenor of
the same, and said company, on said 1st day of November, A. D.
1876, was and still remains insolvent, as your orator is informed
and believes.
And your orator further shows that the roadway of said com-
company was first located, secured and constructed under the pro¬
visions of the laws of Maine and New Hampshire, from Portland
aforesaid to Bartlett aforesaid, a place about eleven miles west of
the Maine and New Hampshire State line ; that before, or at, the
time, or during the progress of said construction, from Portland
to Bartlett, the said company, under and by virtue of the laws of
Maine and New Hampshire, on the first day of November, A. D.
1870, executed a trust or mortgage deed to Woodbury Davis,
Samuel E. Spring, and Weston F. Milliken, their survivors and suc¬
cessors, conveying, in trust, "all that, part of the railroad of said
''company, extending, and to be extended, from the terminus in
"Portland, in the State of Maine, to Bartlett, in the State of New
"Hampshire, located, and to be located, within said limits, includ-
"ing all the rights of way and lands taken and held, or to be here-
"after taken and held, within said limits, in the States of Maine
''and New Hampshire, by said company, for the purpose of its
'road, and all the franchise of said company, to build, maintain and
"operate said railroad, from Portland to said Bartlett, granted, or
'to be hereafter granted by said States of Maine and New Hamp¬
shire, and alt the superstructure of said railroad, between said
'limits of Portland and Bartlett, together with all cars, engines
"and other movable furniture, machinery and equipment of said
"road and other personal property of said company, appertaining
"to and connected with the customary use and working of said
"railroad, and the machinery thereofto secure the payment o^
the bonds of said company, to the amount of Eight hundred thou¬
sand dollars—all dated November 1st, 1870, and payable on the
1st, day of July, A. D. 19.00, with semi-annual interest coupons
annexed, payable on the first day of January and the first day of
July in each year. Principal and interest payable in Boston, Mass.
in gold.
And your orator is informed that all said last named bonds were
issued and sold, and the proceeds thereof used in constructing
said road, lying between Portland and Bartlett, as aforesaid, and
in the purchase of a certain limited amount of equipment, such as
cars, engines and railroad furniture and machinery; but to what
extent said railroad was constructed, or what amount of equip¬
ment and other property was purchased out of funds derived from
the sale of said bonds, this complainant is unable to say.
And your orator shows that the last named mortgage and bonds
are the same incumbrance mentioned in said mortgage deed of
November 1st, 1871, for the removal and liquidation of which
Eight hundred thousand dollars of the bonds, issued under said
mortgage of November 1st, 1871, were especially appropriated to
pay, though your orator is informed and believes that the holders
of the bonds", under said mortgage deed of November 1st, 1870?
refused or were unwilling to receive them in exchange, and that
said Eight hundred thousand dollars of bonds, of the mortgage of
November 1st, 1871, were not and could not otherwise be dis¬
posed of, so as to effectuate the purpose named in said deed,
And your orator shows that it is informed and believes that all
of said bonds, dated November 1st, 1870, are now outstanding,
and that all of the interest coupons on said bonds, heretofore ma.
turing, have been paid to the holders of the same, out of funds de¬
rived in part from the money paid for, or on account of your orator's
bonds, sand other bonds issued and sold under the mortgage of Nov-
1st, 1871 ; and also out of the earnings and avails of property pur*
chased and secured to said company, out^of said last named mort¬
gage and bonds. And your orator further shows, that out of the
proceeds of the bonds of your orator, and the others of the same
issue, that part of the road of said company, lying between said
6
Portland and Bartlett, was completed, and also the road of said
company lying between said Bartlett, and the western terminus
of its bridge across the Connecticut river, to the western line
of the State of New Hampshire; making about sixty miles of
road. And also out of such proceeds the company pur-
chased new and additional engines, and cars, and other stock
and material, movable furniture, machinery, and equipment and
personal property, appertaining to and connected with the custo¬
mary use and workings of said railroad, from Portland to the
western line of New Hampshire, which said property, and other
property of similar character, owned before November 1st, 1871 y
and not paid for out of the avails of the bonds of that date, have
been used in common on all said roads by said company, and from
time to time exchanged, replaced and removed, and other proper¬
ty substituted for the same.
And your orators show that subsequent to the execution of said
mortgage deed of November 1st, 1871, George F. Emery, one of
the Trustees named therein, and who had accepted the office of
Trustee, did resign his office, and that Hon. Nathan Webb, of
Portland, Maine, defendant herein, was duly appointed in place of
the said George F. Emery, and, as your orator believes, has ac¬
cepted said trust. And your orator further shows that the said
Nathan Webb, Samuel E. Spring and Weston F. Milliken, defend¬
ants herein, all reside at Portland, County of Cumberland, and
State of Maine.
And your orator is informed, and upon such information states
its belief, that said Trustees have never taken any steps to secure
and protect the rights of your orator; and that the said Milliken
and Spring are Trustees under said mortgage of November 1st,
1870; and, as your orator understands, are now the sole Trustees
under such last named mortgage ; and as such Trustees have par.
ticipated in the wrongful acts of said defendant company, in ap¬
propriating the earnings of the whole line to the use and benefit of
the mortgage bonds of 1870, and in committing the other grievan.
ces herein-before chargpd and complained of.
And your orator further shows that it does not know, and it can.
not know without discovery by said company, what portion of all
the engines, cars, machinery, equipments, and other property of
said company is exclusively subject to the mortgage of November
7
1st, 1871; and which of right appertain to that portion of said
company's road, lying between Bartlett and the western line of
New Hampshire, upon which road and property your orator's
bonds are a first and prior lien.
And your orator is informed and believes that the net earnings
of that portion of said company's line, lying west of Bartlett's
aforesaid, are large, and that they are very much in excess of the
earnings of that portion lying between said Bartlett and Portland.
But whether sufficient to pa}7 the coupons on the bonds of Nov¬
ember 1st, 1871, it is unable to say. And it avers that the same,
whatever it is, ought to be strictly applied to the interest accruing
upon your orator's bonds, and the other bonds outstanding of that
date. And your orator is entitled to have the same so applied :
and also to have said portion of said road properly equipped and
kept in repair, without having any of the income of said portion
used for the equipment of the other portion of said company's
road, or having it applied to pay the interest on the bonds of
1870.
And your orator is advised, and it believes it can have relief
only in a court of equity, where the income and earnings of the
whole line, the expenses of operating, and the outlays on account
of equipment and other personal property may be marshalled and;
divided justly, according to the several interests.
And your orator further shows that the said company is insol¬
vent, and without credit, and unable to classify and distribute the
receipts and disbursements to the respective rights of the several
interests; and this can be effectually done only by some indiffei-
ent person, under the protection and authority of this Court, so as
to prevent waste and diversion.
Inasmuch, therefore, as your orator is remediless according to
the strict rules of law, and can have relief only in a court ot equity
where matters of this kind are cognizable; to the end therefore
that said defendants may, upon oath, full and true answers make to
all and singular the premises, as full}7 and particularly as if the
same were hereinafter repeated and they thereunto distinctly in¬
terrogated, not only according to their knowledge, but
according to their information and belief, and particularly
that they may answer the several interrogatories hereinafter
set forth, that is to say : ♦
8
I. Whether it? is a fact that a very large portion of the said
engines, cars, and equipment machinery and other property, now
belonging to said company, are the same that were conveyed in
and by said trust deed of November 1st, 1871 ; and also state
what portion, if any, has been received in exchange and substitu¬
tion for any part of what was so conveyed ?
%
II. Whether it is not a fact that a large portion of the proper¬
ty so owned belongs exclusively to that portion of said road lying
between Bartlett's aforesaid and the western line of New Hamp¬
shire ; and whether it was not purchased out of the proceeds of
the mortgage and bonds of November 1st, 1871 ; and .specify in
detail all of said property ?
III. Whether any and what portion of said property lies with¬
in and subject to the jurisdiction of the State of New Hampshire?
IV. Whether any, and if so, what portion of the earnings of
said company's line, Wing west of said Bartlett's, has been used
towards the payment of the interest coupons of the bonds under
the mortgage of November 1st, 1870?
V. Whether any, and, if so, what portion of the earnings of the
said company's line, lying west of said Bartlett's, has been used
towards the equipment or maintenance of that portion of the line
east of said Bartlett's ?
VI. Whether it is not a fact, that the mortgage under which
your orator's bonds were issued, is a first mortgage lien on all that
portion of the company's line lying between Bartlett's aforesaid
and the west line of New Hampshire?
VII. Whether any separate account of the earnings or disburse¬
ments of that portion of the road lying between Bartlett's afore¬
said and the western line of New Hampshire, has ever been kept
by said company ; and if so, state particularly the facts about the
same ?
VIII. State whether it is not a fact that the earnings of that
portion of the property of said company that is subject to the
mortgage of November 1st, 1871, have not been intermingled and
confused with the earnings of that portion of the road and prop¬
erty that is covered by the mortgage of November 1st, 1870?
9
IX. Whether it is not a fact that the said company has paid
the interest on the bonds issued under the mortgage of 1870, as
the same has matured; and if nay, to what extent has it paid said
interest ?
X. Whether it is not a fact that said last named interest has
been paid out of the funds accruing generally from the operation
of the entire line and property extending from Portland to the
western line of New Hampshire aforesaid?
XI. Whether the said company neglected and refused to pay
the coupons on the bonds of November 1st, 1871, falling due the
first day of November, 1876: and whether the said company has
paid any of the interest on said last named bonds maturing since
that time ?
XII. Whether the net earnings of that portion of the company's
line, lying west of Bartlett's aforesaid and the property appertaining
thereto, have been sufficient since 1876 to pay the interest on the
bonds of November 1st, 1871; and state particularly the amount
of net earnings of each year since 1876, of that portion of the line?
And your orator prays that an account may be taken by and
under the direction of this Honorable Court, of the number and
amount of bonds sold and now outstanding, that were issued un¬
der the said mortgage deed of November 1st, 1871, and the amount
due as interest upon the same, and particularly the amount due
unto your orator as interest, and that said railroad company may
be decreed to pay to your orator such sum as may be found due
and owing unto your orator as interest, by a day named, together
with costs of suit; and in default of such payment, that said Port,
land and Ogdensburg Railroad Company may be absolutely barred
and foreclosed of and from all right and equity of redemption in
and to said mortgaged premises and property, lying and being in
the State of New Hampshire; and that your orator may be de¬
creed to have possession of the same, and be decreed to enjoy
and exercise whatever franchise belongs to said company, to own,
maintain and operate the same, so far as it lies in the State of New
Hampshire. And, whenever, by appropriate proceeding, your
orator shall have obtained a decree of foreclosure of the property
so conveyed by said mortgage deed, that lies in the State of Maine ;
or shall by any lawful means have obtained possession of and right
10
to control said road in Maine and New Hampshire: then that your
orator may have right to deal with and control and possess all of
said property in the States of Maine and New Hampshire, as fully
as the said company might, had no default been made under said
trust deed ; and, in the meantime, to prevent waste of said proper¬
ty and the impairment of the security of your orator, and to guard
against any diversion of the earnings and income of said railroad
and property, fixed and movable, appertaining thereto, (from Bart-
lett west to the western terminus of the road of said company,) to
any other purpose than its application upon the bonds and interest
coupons secured by the mortgage of November 1st, 1871, a re¬
ceiver or receivers be appointed by the Court to take charge of
the said railroad, so situated in the State of New Hampshire, and
the property appertaining thereto, and run and operate the same,
and cause such needful and proper repairs to be made thereon as
shall be requisite for the maintenance and preservation of the prop"
erty, and also keep strict accounts of the receipts and disburse¬
ments on account of said property, and distinct accounts of the
same.
And that your orator may have such other and further relief in
the premises as the nature of the case shall require, and to your
Honors shall seem meet.
May it please your Honors to grant unto your orator the writ of
subpoena of the United States of America, to be directed to the
said Portland and Ogdensburg Railroad Company, and the defend_
ants aforesaid, therein and thereby commanding the said defend,
ants, on a day certain, to be named, and under a certain penalty, to
be and appear before this Honorable Court, then and there to an-
svver all and singular the premises, and to stand to, perform and
abide by such orders and decree as may be made against the said
defendants in the premises, and as shall seem meet and agreeable
to equity and good conscience. And also that your Honors shall
make an order directing said absent non-resident defendants?
Spring, Milliken and Webb to appear, plead, answer, or demur, on
a certain day designated, and direct with reference to the service
thereof, according to law, in such case made and provided.
And your orator, as in duty bound, will ever pray, etc.
THE MERCANTILE TRUST COMPANY,
By Louis Fitzgerald, President.
11
United States of America, )
Southern District of New York, ss. \
Louis Fitzgerald, being duly sworn, deposes and says, that he
is the President of the Mercantile Trust Company, the complainant
in the above bill; that he has read the same, and knows the con¬
tents thereof; that the said bill is true, except as to the statements
therein made on information and belief, and as to those, he believes
it to be true.
LOUIS FITZGERALD.
Subscribed and sworn to before me, this fourteenth day of
April, A. D. 1882, at New York City, County and State, As
witness my hand and Notarial seal.
CHARLES EDGAR MILLS,
A Notary Public for New York County in N. Y.
[seal]
J. W. FELLOWS, of Consul.
\
ANSWER OF THE P. & 0. R. R. CO.
FILED AUGUST 7, 1882.
THE MERCANTILE TRUST COM PANT
complainant in equity
VS.
THE PORTLAND & OGDENSBURG RAILROAD COMPANY
The answer of the Portland and Ogdensburg Railroad Company
tiled in the Circuit Court of the United States for the District of
New Hampshire at August rules, 1882, (Aug. 7th.)
In the Circuit Court of the United States for the District
Mercantile Trust Company Complainants vs. The Portland and Ogdensburg Railroad
Company, and Samuel E. Spring, Watson F. Milliken and Nathan Webb,
The answer of the Portland and Ogdensburg Railroad Company
Defendant to the bill of complaint of the Mercantile Trust Com.
pany, Complainant.
This defendant protesting that this Honorable Court has no
jurisdiction over it and not waiving its rights in that behalf, now.
and
T. H. IJAbKELL,
Solicitor for Defendants.
of New Hampshire.
Trustees, Defendants.
14
and at all times hereafter saving and reserving to itself all benefit
and advantage of exception which can or may be had or taken to
the many errors, uncertainties or other imperfections in the com¬
plainant's said bill of complaint, for answer thereto, or unto so
much and such parts thereof as this defendant is advised is or are
material or necessary for it to answer unto, answering says, that
it denies that it is a corporation chartered by the laws ot the State
of New Hampshire, or is, or hitherto has been found within that
State or is, or hitherto has been a citizen thereof, but saith that it
is chartered by the laws of the State of Maine and was authorized
only to continue and prolong its railroad through the State of
New Hampshire by the laws of that State, as alleged in said bill
of complaint, and says that all the other Defendants are citizens
of the State of Maine and not of the State of New Hampshire,
nor were they hitherto there found or citizens thereof.
That whether the complainant is a corporation legally organ¬
ized and existing under and by virtue of the laws of the State of
New York and is a citizen of that State it is not informed except
by the complainant's bill and will require the same to be proved.
That only a small portion of the mortgage property lies within
the State of New Hampshire and within the jurisdiction of this
Honorable Court, and that this Honorable Court has neither juris¬
diction of the parties defendant nor of the whole mortgaged prop¬
erty, so that it can give any adequate or lawful relief in the
premises, as a court of equity it ought to be able to do before it
takes jurisdiction of the cause.
And this defendant further answering admits that under the
provisions of the laws of the States of Maine and New Hampshire
it located and constructed its railroad from Portland in the State
of Maine to Fabyan's Place in the State of New Hampshire,
through the counties of Cumberland and Oxford in the State
of Maine and. through the towns of Conway and B-artlett and
through the Notch of the White Mountains in New Hampshire as
alleged in said bill of complaint a distance of 88 90-100 miles, to
wit, from Portland to Bartlett 61 44-100, and from Bartlett to
Fabyan Place 27 50-100 miles, and not 40 miles as alleged in the
complainant's bill of complaint and also that it has constructed at
the western terminus of its route only 2 32-100 miles of railroad
15
extending from the western line of New Hampshire on the Con¬
necticut river to Scott's Mills in the town of Dalton in that State,
and not 5 miles as alleged in complainant's bill of complaint, and
that the whole line of its railroad constructed as aforesaid now is,
and for a long time has been in operation and run over by
cars and engines carrying the United States mail, passengers and
freight and earning tolls.
And this defendant further answering admits that in accordance
with a vote of its stockholders this Defendant by its deed dated
November 1, 1871, duly acknowledged and recorded did convey
in trust and mortgage by virtue of the laws of the States
of Maine and New Hampshire to Samuel E. Spring, Weston F.
Milliken and George F. Emery their successors and survivors as
Trustees all of its said railroad located and to be located in Port¬
land, in the State of Maine, and thence to its terminus at the west¬
ern boundary line of the State ot New Hampshire, with all
the rolling stock, stations, fixtures and franchises thereof, and ap¬
purtenances thereto belonging, then owned or held, or that may
thereafter be acquired by said Company. Also, any and all rights
that may be acquired by lease or contract, in any railroad forming
part of the through line from Portland to Ogdensburg, with all lands
and tenements then taken or held by said company. To build,
maintain and operate said railroad, granted or to be hereafter granted
by said States of Maine and New Hampshire, together with all the
engines, cars, and other movabe furniture, machinery and equip¬
ment, of said railroad company, and all other personal property of
said company, appertaining to and connected with the customary
use and working of said railroad, and machinery thereof, condi¬
tioned to secure the payment of its negotiable bonds to the
amount of $33,000,000.00, dated November 1, 1871 payable in
gold coin in the city of Boston, Massachusetts on the first day of
November, 1901, with interest thereon at the rate of six per cent,
per annum in like gold, on the first day of May and the first day of
November in each and every year in said citv of Boston, on the
presentation there of the semi annual interest coupons thereto at¬
tached ; and that said mortgage constitutes a valid lien upon said
mortgaged property to secure the payment of said bonds accord¬
ing to their tenor, as alleged in said bill of complaint, subject how-
16
ever to the prior liens hereafter set forth. That said mortgage
provided that a portion only of said bonds amounting to $2,500,-
000.00 should be issued to provide for the construction, equipment
and completion of said railroad and that the remaining $.800,000.00
were to be appropriated to and used only for the liquidation arnd
removal of a prior mortgage on that portion of said railroad
extending between its terminus in said Portland and said Bartlett,
a distance of 61 44-100 miles.
And this defendant further answering says that the sum of
$2,268,000.00 dollars of said bonds were issued and sold and are
new held by bona fide holders for value, and that $227,500.00 of
the same are pledged and now held as collateral for the indebted¬
ness of defendant company, and that all the same are secured by
said mortgage stipulating for their payment, and that the funds
received therefrom were used for the construction and equipment
of its said railroad.
And this defendant further answering says that whether the
complainant is the holder of the $80,000.00 of said bonds, or any
of them, as alleged in its bill of complaint, this defendant has no
knowledge or information save by said bill of complaint and
leaves the complainant to prove its ownership thereof, but says
that the interest coupons on all of said bonds were paid up to, and
including the coupons due May 1, 1876 and admits that it
has,bee!) unable to pay any of the coupons on said bonds falling
due since that date and that the same are overdue and unpaid, but
has no knowledge.that prior to the filling of the complainant's
bill of complaint, that the complainant ever demanded payment of
any of its said coupons so alleged to be held by it as aforesaid,
and will lequire proof of any such demand.
And this defendant further answering says, that on the first day
of November, 1870, by virtue of the laws of the States of Maine
and New Hampshire, pursuant to a legal vote of its stockholders
by its deed dated that day, it did convey in trust and mortgage to
Woodbury Davis, Samuel E. Spring and Weston F. Milliken their
survivors and successors all that part of its railroad extending and
to be extended from its terminus in Port'and in the State of Maine
to Bartlett in the State of New Hampshire located and to
be located within said limits including all the rights of way and
17
land taken and held or thereafter to be taken and to be held with¬
in said limits in the States of Maine and New Hampshire by this
defendant for the purpose of its road and all its franchise to build,
maintain and operate said railroad from said Portland to
said Bartlett granted or thereafter to be granted by said States of
Maine and New Hampshire and all the superstructure of said rail¬
road between said limits of Portland and Bartlett together with
all cars, engines and other movable furniture, machinery and
equipment of said road and other personal property of said com.
pane appertaining to and connected with the customary use and
working of said railroad and the machinery thereof, to secure the
payment of the bonds of said company to the amount of $800,-
000.00 all dated November 1, 1870 and payable in said city of
Boston on the first day of Jul}7 1900, in gold, with interest paya¬
ble semi-annually in said city of Boston, in gold upon presentation
there of the semi-annual interest coupons thereto attached, and
that said last named mortgege was duly executed, acknowledged
and recorded in the Cumberland County Registry of Deeds in the
State of Maine on the first day of November 1870 and in
the Oxford County Western District Registry of Deeds in
the same State on the twenty-first day of November, 1870, and in
the office of the Secretary of State for the State of New Hamp¬
shire on the twenty-third day of December, 1871 and constitutes
a valid first lien upon the mortgaged property, to secure the pay¬
ment of said last named bonds and coupons attached.
And this Defendant further answering admits that said last
named bonds were issued and sold and the proceeds thereof used
in constructing said railroad from its terminus in said Portland to
Bartlett aforesaid and in the purchase of equipment for the same
as alleged in said bill of complaint.
And this defendant further answering admits that said last
named mortgage and bonds are the same incumbrance mentioned
in said mortgage deed of November 1, 1871 for the removal and
liquidation of which $800,000.00 of the bonds provided for under
said mortgage of November 1, 1871 were especially reserved and
limited, but could not be used for that purpose because the
holders of said first mortgage bonds dated November 1, 1870 re¬
fused to surrender the same and to take the mortgage bonds of
18
November 1, 1871 in exchange therefor, and could not be dis¬
posed of in any way so as to enable defendant company
to take up and extinguish said prior mortgage and bonds.
And this defendant further answering admits that all said first
mortgage bonds amounting to $800,000.00, dated November 1,
1870 are outstanding but denies that any of the interest coupons
heretofore maturing have been paid out of the earnings and
avails of property solely purchased and secured to this defendant
out of said last named mortgage bond of Nov. 1, 1871 but admits
that some of the funds, in amount, to this defendant unknown,
during the construction of the said railroad, may have been used
in common with other moneys of defendant to pay a portion of
the interest upon said first mortgage bonds of November 1,
1870.
And this defendant further answering says, that the funds
received from the bonds of November 1, 1871. were applied as far
as they would go toward the construction of that portion of its
road lying west of Bartlett aforesaid, in all 29 82-100 miles of road
to wit: from Bartlett to Fabyan's 27 5-10 miles and from the Con¬
necticut river to Soott;s mills 2 82-100 miles and also to complete
that portion of its road lying east of said Bartlett, and also for the
purchase of engines,, cars and other stock and material equipment
for the whoie of said road, w.hich said property this defendant un-
derstands to be secured to the payment of said last named bonds
under the mortgage of November 1, 1871, but denies that any of
the rolling stock and other equipment of said road covered by the
mortgage of November 1, 1870 has been exchanged or replaced
by property purchased from the funds received from the bonds of
November 1, 1871.
And this defendant further answering admits that all the rolling-
stock and other equipment of said road included in the mortgage
of November 1, 1870 as well as that included in the mortgage of
November 1, 1871 has been used in common for the general oper¬
ation of said railroad, but that a special account thereof and of
the earnings therefrom has been kept and stated as this defendant
particularly shows in answer to the special discovery sought by
the complainant in its said bill of complaint.
And this defendant further answering says that subsequent to
I
19
the execution of said mortgage of November 1, 1871, Mr. George
P. Emery one of the Trustees named therein, resigned that trust
and that Mr. Nathan Webb of said Portland on the seventeenth of
October, 1877 was duly appointed to that trust, and accepted the
same, and is now one of the trustees under that mortgage, and
that Samuel E. Spring, Weston F. Milliken and Nathan Webb, all
residents of said Portland and citizens of the State of Maine are
the only trustees under the said mortgage of November 1,
1871.
And this defendant further answering says that said Spring and
Milliken together with Philip H. Brown of said Portland are the
present trustees under the said mortgage of November 1, 1870,
but denies that they or either of them have participated in any
act appropriating any of the earning of the whole line to the pay¬
ment of interest upon the first mortgage bonds of November 1,
1870, or in committing any other grievance in said bill of com¬
plaint, or that they or either of them have in any way participated
in any wrongful, inequitable or unlawful act touching the interests
of the bond-holders under the said mortgage of November 1, 1871,
but on the contrary have always been faithful to their trust and
duty as trustees under the same.
And this defendant further answering says that it is not true
that the complainant cannot know without discovery what portion1
of all the engines, cars, machinery, equipments and other property
of defendant company is exclusively subject to the mortgage of
November 1, 1871 and which of right appertain to that portion
of the defendant road lying between Bartlett and the western
line of New Hampshire upon which road and property the bonds
of November 1, 1871 are a first and prior lien, but on the con¬
trary says that such information was not asked by the complain¬
ants prior to the filing said bill of complaint, and that it, at all
times was ready and willing to give such information to any bond¬
holder of defendant company, or other person in interest upon ap¬
plication at its office in the city of Portland or elsewhere.
And this defendant further answering says that the net earnings
of its railroad west of Bartlett are not large and are not in excess
of the net earnings of that portion of the same east of Bartlett,
and that no portion of its earnings upon that portion of its road
20
west of Bartlett have ever been applied to the payment of interest
upon defendants said bonds of November 1, 1870 or to the
equipment of the whole railroad for which that portion west of
Bartlett did not receive a just and equitable compensation, all of
which fully appears in the specific statement given in answer to
complainant's request for discovery in the premises.
And this defendant furthering says that its said railroad is the
only approach into and through the White Mountains from the
south, and that when operated as a continuous line connecting
Casco Bay with the terminus of the vast railway and interior
water system from the west conveying at the outlet of Lake
Champlain, bringing that point nearer the ocean than any other
route, and when operated as a continuous line is a vastly more
valuable property than it would be if it became divided and its
several parts were each controlled by a separate management.
That that portion of the road east of Bartlett covered by the mort¬
gage of November 1, 1870 as well as by the mortgage of
November 1, 1871 earns yearly above expenses, more than enough
to pay the interest on the mortgage bonds of 1870 as fully
appears by the specific statement given in answer to complain¬
ants request for discovery in the premises, and is of much greater
value than the entire first mortgage debt of November 1, 1870
fc*ad that the equity of that mortgage together with the other
mortgaged property included in the mortgage of November 1,
1871 create a more valuable security for the complainant's said
bonds and others of the same issue when held and utilized as an
entirety and that it would be deleterious and destructive to at¬
tempt to sever the same and thereby depreciate the value of both
separate parts. •
And this Defendant further answering says that although it has
been pecuniarily embarrassed, yet it is able to classify and dis¬
tribute the receipts and disbursements of each portion ol its rail¬
road and property according to the respective rights of the sev¬
eral interests therein, and that inasmuch as no charge of waste or
unfaithful or unwise or imprudent management is pretended or
charged against this defendant, the whole mortgaged property
can be better preserved more economically managed, made to
yield a large income and kept in better condition and repair if
21
left in its custody and control, than if a part should be taken in
charge by the Court and subjected to additional expense and es¬
tranged management, and eventually will become equal in value to
the indebtedness charged upon it.
And this defendant further answering in response to the sev¬
eral special interrogations in the complainants bill contained in
*
answer to the first interrogatory says, It is a fact that a very large
portion of the said engines and cars and equipment, and other
property now belonging to said company are the same that were
conveyed in and by said trust deed of November 1, 1871 or have
been since acquired and have been considered subject to said trust
deed. No portion has been received in exchange and substituted
for any part of what was conveyed, excepting of course the
usual repairs of rolling stock consequent on the ordinary wear
and tear of the same.
In answer to the second interrogatory says, It is a fact that a
large portion of the property so owned has been acquired since
die date of the mortgage of November 1, 1870, and has been
considered as subject to the mortgage of November 1, 18717
whether it belongs exclusively to that portion of road lying be¬
tween Bartlett aforesaid and the western line of New Hampshire
this defendant is not compent to say, as the question has not been
judicially determined. It was purchased in part from the pro.
ceeds of the mortgage and bonds of November 1, 1871, and in
part from the earnings of the whole road.
The rolling stock owned by this defendant is as follows :
Seven Locomotives,
Eight passenger cars,
Four open passenger cars,
Two smoking cars,
Four baggage cars',
Five break vans,
Forty-five box cars,
Twenty-five hay cars,
Twenty ice cars,
Seventy-two platform cars,
One crane car,
Three snow plows.
22
Of the above rolling stock three locomotives, two passenger
cars, forty platform cars, twenty box cars, two brake vans, were
purchased prior to November 1, 1870. The remainder has been
purchased since November 1, 1870. In addition to the above de¬
scribed property, locomotive Crawford, Frankenstein and Resolu"
tion and twenty box cars, sixty platform cars, twenty log cars,
twenty dump cars are hired from the Portland Company, under
an arrangement by which this company has the right to become
owner upon payment for the same in full, but is to have no title
without such entire payment.
In answer to the third interrogatory says, the road bed and
track and real estate of the company lying within the State of New
Hampshire is doubtless within the jurisdiction of the State of
New Hampshire. The rolling stock passes over the entire line
both in New Hampshire and Maine from time to time as the course
of business makes necessary or expedient.
In answer to the fourth interrogatory says, No portion of the
earnings of said Company's line lying west of said Bartlett has
been used towards the payment of the interest coupons of
the bonds under the mortgage of November 1, 1870.
frj answer to the fifth interrogatory says no portion of the earn¬
ings of the said Company's line lying west of said Bartlett has
been used toward the equipment or maintainance of that portion
of the line east of said Bartlett, as distinguished from the whole
of said railroad.
In answer to the sixth interrogatory says, it is a fact that the
mortgage under which the complainant's alleged bonds were is¬
sued is a first mortgage lien on all that portion of the Company's
line lying between Bartlett aforesaid and the west line of New
Hampshire.
In answer to the seventh interrogatory says', no separate ac¬
count was kept prior to September 30, 1877. In the fall and
early winter of 1876, an expert accountant, Mr. R. Stuart Chase
of Haverhill, Massachusetts, was employed by the city of Port¬
land, (which hold the major part of the bonds issued under the
mortgage of November 1, 1871) to thoroughly examine the affairs
of the company and to determine the earnings of the line from
Portland to Bartlett, called by him the " Portland section " and of
23
the line from Bartlett to Connecticut River called the l< mountain
section," for the* year ending December 1, 1876. The result of
his investigation (which occupied him some two months) may be
found in the answer to interrogatory twelve. By the request of
persons who held b}T far the larger part of the bonds of the com¬
pany dated November 1, 1871, strict and separate accounts were
commenced on October 1, 1877, and have since been kept of the
earnings and disbursements of the road from Portlaud to Bartlett,
called Division A, and from Bartlett to the Connecticut River,
called Division B. A full statement of the earnings and disburse¬
ments of the B division is given in answer to interrogatory
twelve. This division of the operations of the road with refer¬
ence to the separate mortgage was desired bv such bondholders
under the mortgage of November 1, 1871, for their information;
so that it might be shown whether the line from Bartlett to the
Connecticut River covered by the mortgage securing their bonds
was earning any surplus beyond its operating expenses.
In answer to the eighth interrogatory says, it is a fact that the
earnings of that portion of the property of said Company that is
subject to the mortgage of November 1, 1871, were intermingled
and confused with the earnings of that portion of the road
and property that is covered by the mortgage of November 1,
1870 until the first day of October 1877, since which time they
have been separated and not intermingled or confused as appears
in answer to interrogatory seven.
In answer to the ninth interrogatory says the interest on the
bonds issued under the mortgage of November I, 1870 falling
due January and July 1, 1877 and January and July 1, 1878 were
funded and the company granted six years time in which to pay
them. With this exception the company has paid the interest on
said bonds as the same has matured.
In answer to the tenth interrogatory says it is not a fact that
the said last named interest has been paid out of the funds accru¬
ing generally for the operation of the entire line and prop
erty extending from Portland to the western line of New Hamp.
shire.
All the earnings of that portion of the line lying west of Bart¬
lett have been spent upon that portion of the line and a portion
24
l
also of the earnings of the line east of Bartlett has been spent on
the portion of the line west of Bartlett as will more fully appear
in answer to interrogatory twelve.
In answer to the eleventh interrogatory says, the said company
did for want of means neglect to pay the coupons on the bonds of
November 1, 1871 falling due the first day of November 1876
and has not paid any of the interest on said bonds maturing since
that time.
In answer to the twelfth interrogatory says : the earnings of
that portion of the company's line lying west of Bartlett, and the
property appertaining thereto have not been sufficient since 1876,
to pay the interest on the bonds of November 1, 1871.
The earnings for the year ending September 30,
1878 were $96,275 58
Operating expenses for same year were 65,663 61
Net earnings $30,611 97
Earnings for the year ending September 30, 1879
were 93,402 91
Operating expenses for same year were 64,961 55
Net earnings $28,441 36
Earnings for the year ending September 30, 1880
were 89,910 32
Operating expenses for the same year were 72,769 49
Net earnings $17,140 83
Earnings for the year ending September 30, 1881
were 99,219 28
Operating expenses for the same year were 89,094 76
Net earnings $10,124 52
The net earnings have been expended in payment of the debts
due to Fuller and Harding, James Savage, Powell McCabe & Co.
T. & R. Shanahan, contractors, who worked on the line west of
Bartlett, to Bank for loans in aid of construction of that line, to
25
the Portland Company, locomotive and car builders, on account
of locomotives Crawford, Frankenstein and Resolution and one
hundred and twenty cars, which, when paid for in full will belong
to the division west of Bartlett, to D. W. Clark & Co. for balance
due on twenty ice cars ; to certain banks and individuals for loans
to build the line from Scott's Mills to and across the Connecticut
River, and sundry small construction items relating to that Divis¬
ion and to A. T. & 0. F. Barrow for expense of teams, board of
engineers and supplies while surveying and building said line.
The amount so expended in. the four years ending
September 30, 1881 is $97,048 75
Deduct from this the amount of net earnings for the
four years as shown above 86,318 68
Leaves a deficit on the Division paid by the Division
east of Bartlett of $10,730 07
A full and particular statement of the disposition of the net
earnings is shown below by years. All these expenditures are
absolutely chargeable to the Divisisn west of Bartlett, For the
year ending December 1, 1876 the expert who examined the af
fairs of the company as stated in answer to interrogatory seven
found that there was no net earnings whatever on the mountain or
B. section, but that the earnings failed to pay the running
expenses in the sum of $5,972.35.
Disbursements in addition to operating expenses relating to
mortgage of November 1, 1871 for the year ending September
30, 1878.
Principal.
Interest.
Total.
Portland Co., machine works,
2,897 30
246
00
3,143 30
J. Savage & Powell & McCabe, contractors,
2,111 76
275
45
2,390 21
Fuller & Harding, contractors,
2,756 22
66
35
2,822 57
I). W. Clark & Co., ice cars,
4,478 20
106 80
4,585 00
T. &. R. Shannahan, contractors,
252 34
252 34
A. T. & O. F. Barrow, expense, etc.,
981 78
931 78
Dal ton construction loan,
5,104 18
5,104 18
Loan by bank for construction,
1,000 00
*541
66
1,541 66
* Tliis amount is interest on other loans besides the $1000.00.
t
26
Empire Vacuum Brake Co.,
Sundry construction debts,
Fuel purchased in addition to used,
577 73 577 78
846 78 78 01 924 79
2,311 02 2,311 02
$23,3.0 36 $1,314 27 $24,634 68
187S & 1879.
Portland Co.,
5,100 00
496 45
5,596 45
James Savage,
3,206 11
203 26
3,409 37
Fuller & Harding,
937 85
249 03
1,186 88
T. & A. Shannahan,
209 97
209 97
Dalton loan,
2,552 09
f6.875 87
9,427 96
Loans by Savings Banks,
352 48
352 48
Empire Vacuum Brake Co.,
722 25
722 25
Sundry construction accs.,
242 33
41 35
283 68
Fuel purchased and on hand,
4,035 37
4,035 37
$17,005 97
$8,218 44
$25,224 41
1879 & 1880.
Principal.
Interest.
Total.
Portland Company,
12,280 00
521 95
12,801 95
James Savage,
3,903 36
236 58
4,139 94
Fuller & Harding,
481 89
72 34
554 23
Coupons on city bonds,
3,180 00
79 50
3,259 50
Dalton loan,
5,104 18
2,080 45
7,184 63
Loans by banks,
285 83
285 83
Sundry construction accs.,
170 43
170 43
Fabyan cottage,
807 66
807 66
Bartlett siding,
381 69
381 69
Fuel purchased and on hand,
887 32
887 32
$27,196 53
$3,276 65
$30,473 18
1880 & 1881.
Portland Company,
9,340 00
1,483 24
10,823 24
Dalton construction loan,
2,552 09
. 1,831 12
4,383 21
James Savage & Powell, McCabe & Co., 710 08
710 08
James S. Libby,
800 00
800 00
$13,402 17
$3,314 36
$16,716 53
t This is three years interest 011 entire loan.
27
$24,634 63
25,224 41
30,473 18
16,716 53
$97,048 75
In the foregoing statement of operating expenses, the rolling
stock, both owned and hired has been treated as belonging to the
whole road and the B Division west of Bartlett charged with re„
pairs according to the mileage on its road. A Division east of
Bartlett being charged with the balance and no account has been
made of the use of B's cars on A division.
The division has been made as follows viz: As the entire
mileage of freight cars over the entire line, is to the entire repairs
of freight cars, so is the mileage of freight cars on B division to
the amount of repairs to be paid by B. division. The balance has
been charged to A division. Repairs of passenger cars and loco¬
motives have been treated in same way, that is divided between
A and B division according to the respective mileage.
The fuel, oil, waste and so forth and wages of engineers and
firemen have been charged to the division to which they
relate.
If instead of dividing as above stated B division had repaired
its own and hired rolling stock and charged to A division mileage
on the same, the deficit of B division would be increased for the
three years $2,603.25 and would then stand $13,333.32 instead of
$10,730.07 as under the system of division actually pursued by the
company as will more fully appear in the following statement in
which it is assumed that each division has all its cars in use over
the whole line and each division is credited with mileage accord¬
ing to its share of rolling stock, assuming for purposes of this
computation that B. owns all rolling stock purchased since Nov.
1870 and all hired stock.
YEAR ENDING SEPT. 30, 1878.
B Division provides 2-3 ot locomotives. Locomotive mileage 7c per mile.
B 44 44 2-3 of passT cars. Pass'r car 44 2c 4 4 4 4
B 44 44 25-42 of freight cars. Freight car 44 lc 4 4 4 4
Year ending September 30, 1878,
44 1879,
44 1880,
44 1881,
28
Loco mo repairs $8,735.43 B pays 2-3 = $5,823.62 less
$1,877.02 already charged 3,946 6<>
Passenger cars repairs $4,939.89 B pays 2-3 = 3,293.26 less
$1,636.27 already charged 1,656 99
Freight cars repairs $8,050.16 B pays 25-42 = 4,791.82 less
$1,814.82 already charged 2,976 93
Locomo run on B Div'n 64,523 miles at 7c per mile credit at 1-3 1,505 54
Pass, cars 44 B 44 108,810 " 2c 44 " 1-3 725 40
Fr't cars " B 44 95,970 44 lc " " 17-42 388 45
Total repairs and for mileage of A's cars $11,199 91
C r edit.
Locomo run on A Div'n, 126,010 at 7c cr. B 2-3 5,880 46
Pass'r cars 44 A " 214,272 at 2c cr. B 2-3 3,190 32
Freight cars " A '' 409,355 at lc cr. B 25-42 2,436 63 $11,507 41
Net earnings of B Division for the year $307 50
YEAR ENDING SEPT. 30, 1879.
B provides 2-3 of locomotives.
B 44 5-7 of passenger cars.
B " 101-169 of freight cars.
Locomo repairs $7,676.94 B pays 2-3 = $5,117.96 less $2,-
$419.37 already charged $2,707 59
Pass'r cars repairs $5,184.39 B pays 5-7 = $3,703.10 less
$1,924.72 already charged 1,778.38
Freight cars repairs $7,449.39 B pays 101-169 = $4,480.05
less $1,626.58 already charged 2,853 47
Locomo run on B Div'n 66,033 miles credit A with 1-3 1,540.77
Pass'r cars " B " 104,661 44 " A 44 2-7 598.96
Fr't 44 44 B 44 98,397 44 44 A 44 68-169 395 89
a
Total for repairs and for mileage of A's cars 9,874 16
Credit.
Locomo run on A Div'n 122,736 miles cr. B 2-3 $5,727 68
Pass'r cars 44 A 44 227,329 44 4 4 B 5-7 3,247 55
Fr't cars 44 A 44 357,573 44 " B 101-169 2,136 96 $11,112 19
Net earnings of B Division for the year $1,238 08
YEAR ENDING SEPT. 30, 1880,
B provides 2-3 of locomotives.
B 44 5-6 of passenger cars.
B 44 121-189 of freight cars.
29
Locom's repairs $7,770.57 B pays 2-3 = $5,180.35 less
$2,537.48 already charged $2,642 90
Pass'r cars repairs $6,234.92 B pays 5-6 = $5,195.76 less
$1,741.01 already charged 3,454 75
Freight cars repairs $9,796.25 B pays 121-189 =$6,271.43 less
$2,049.57 already charged 4,221 85
Locom's run on B Div'n 67,117 miles credit A 1-3 1,566 06
Pass'r cars 44 B " 98,034 " 44 A 1-6 326 78
Fr't 44 44 B 44 101,007 44 44 A 63-169 363 69
Total for repairs and for mileage of A's cars $12,575 73
Locom's run on A Div'n 130,183 miles credit B 2-3 6,075 20
Pass'r cars 44 A 44 2 25 , 46 0 4 4 44 B 5-6 3,757 66
Fr't 4 4 4 4 A 44 438,700 44 44 B 121-189 2,808 41 $12,641 27
Net earnings of B Division for the }~ear $65 45
YEAR ENDING SEPT. 30, 1881.
B provides 2-3 of locomotives.
B 44 8-9 of passenger cars.
B 44 83-114 of freight cars.
Locom's repairs $13,373.67 B pays 2-3 = $8,916.45 less
5,-463.87 already charged $3,452 58
Pass'r cars repairs $5,726.80 B pays 8-9 = $5,090.48 less
$1,589.67 already charged 3,800 81
Freight cars repairs $10,758.81 B pays 83-114 = $7,833.17 less
$2,131.19 already charged 5,698 98
Locom's run on B Div'n 50,353 miles cr. A 1-3 and charge B 1,174 9n
Pass'r cars 44 B 44 81,545 44 44 A 1-9 4 4 B 181 21
Fr't cars 4i B 44 90,192 44 44 A 31-1 14 44 B 245 26
Total for repairs and for mileage of A's cars $14,553 74
Locom's run on A Div'n 97,576 miles credit B 2-3 $4,5o3 55
Pass'r cars 44 A 44 187,961 44 44 B 8-9 3,341 52
Freight cars44 A 44 335,767 44 44 B 83-114 2,444 35 $10,339 42
Deficit of B Division for the year $4,214 32
SUMMARY..
Deficit as per acct. as actually kept $10,730 07
44 for 1*81 per foregoing statement 4,214 32 $14,944 39
Earnings for 1878 per foregoing statement 307 50
187 9 4 4 4 4 44 1,2 3 8 03
1880 44 44 44 65 54 $1,611 07
Total deficit B division $13,333 32
30
And this defendant submits to this Honorable Court that alf
and every matters in said complainant's bill mentioned and com¬
plained of are matters with respect to which the said complainant
is not entitled to any relief from a court of equity and this defend¬
ant hopes it shall have the same benefit of this defence as if it had
demurred to said complainant's bill ot complaint.
And this defendant denies all and all manner of unlawful com.
bination and confederacy wherewith it is by the said bill charged
without this that there is any other matter cause or thing in the
said bill of complaint contained material or necessary for this de¬
fendant to make answer unto and not herein and hereby well and
sufficiently answered, confessed, traversed and avoided or denied
is due to the knowledge or belief of this defendant.
All which matters and things this defendant is willing to
aver maintain and prove as this Honorable Court shall direct; and
humbly prays to be hence dismissed with its reasonable costs and
charges in this behalf sustained.
PORTLAND & OGDENSBURG RAILROAD COMPANY,
By Samuel J. Anderson. President.
T. H. Haskell,
Defendant's Solicitor.
United States of America, ) . , 1000
n. . . , f u ■ ' > August 5th, 1882.
District ot Maine, ss. >
Personally appeared the above named Samuel J. Anderson has
made oath that he is the President of said Railroad Company that
he has read the above answer and knows the contents thereof and
that the same is true as of his own knowledge except the matters
stated upon his information and belief and that he believes those
matters to be true.
Before me
T. H. HASKELL
Commissioner of the Circuit Court of the United States
for the District of Maine.
r
[seal]
Answer of the Trustees, Defendants.
Filed August 7, 1882.
THE MERCANTILE TRUST COMPANY
COMPLAINANTS IN EQUITY
tIS
THE PORTLAND & OGDENSBURG RAILROAD COMPANY
SAMUEL E. SPRING )
WESTON F. MILLIKEN and V trustees, Defendants
NATHAN WEBB )
The answer of Trustees
SAMUEL E. SPRING
WESTON E. MILLIKEN and
NATHAN WEBB
filed in the Circuit Court of the United States for the District of
New Hampshire at August rules, being August 7, 1882.
T. H. HASKELL
Solicitor for Defendants.
32
In the Circuit Court of the United States for the District
of New Hampshire,
The Mercantile Trust Company Complainants vs The Portland & Ogdensburg Rail¬
road Company and Samuel E. Spring Weston F. Milliken and Nathan
Webb Trustees Defendants.
The answer of Samuel E. Spring Weston F. Mil liken and Nathan Webb Trustees,
Defendants, to the bill of complaint of the Mercantile Trust
Company, Complainants.
These defendants protesting that this Honorable Court has not
jurisdiction over them nor over the whole property held by them
in trust and mortgage as hereinafter set forth which is indivisible
and cannot be lawfully severed and divided as prayed for in the
complainant's said bill and not waiving their rights in this behalf
now and at all times saving and reserving to themselves all bene¬
fit and advantage of exception which can or may be had or taken
to the many errors uncertainties and other imperfections in the
complainant's said bill of complaint, for answer thereto or there¬
unto so much and such parts thereof as these defendants are ad¬
vised is or are material or necessary for them to answer unto
answering say that whether the complainant is a corporation
legally organized and existing under the laws of the State of
New York and is a citizen of that State they have no knowledge
or information save by said bill of complaint and require the same
to he proved.
That the defendants are all citizens of the State of Maine and
are neither found in the State of New Hampshire nor are they
citizens of that State nor were they hitherto there found or citi¬
zens thereof.
That the mortgage sought to be foreclosed was made executed
and delivered in the State of Maine under the laws thereof and
the greater portion of the property included therein lies, now is,
and at the time of filing said bill was, and ever since has been in
that State, to tvit 57 1-8 miles of railroad with depot, office, build¬
ing, engine and car houses. About twelve acres of land and flats
upon tide water near Portland harbor intended for repair shops
and engine houses and the principal equipment belonging to said
railroad together with other termined facilities for the same,
33
against 34 1-8 miles of railroad in the State of New Hamp¬
shire.
That they respectfully submit to this Honorable Court whether
said trust property is not a unit and indivisable and whether it
has sufficient jurisdiction of the same and of the parties defend¬
ant to this bill to enable it as a court of equity to proceed with
the cause and give the complainants the remedy prayed for or
any lawful or adequate remedy in the premises as a court of
equity should be able to do before it takes jurisdiction of the
cause.
And these defendants further answering say that the defendant
corporation was chartered by the Legislature of the State of
Maine with capital stock amounting to $2;000,000 00 which has
since been reduced to $1,630,000.00 (of which $1,052,185.55 was
subscribed for and actually paid in) and authorized by that State
to locate and construct its railroad from tide water in Portland in
that State through the counties of Cumberland and Oxford in the
same State to the line of the State of New Hampshire and to con¬
tinue and prolong its railroad through that State. And being so
organized and chartered by the Legislature of the State of Maine
was also authorized by the Legislature of New Hampshire to con¬
tinue and prolong its said railroad according to the provisions of
its charter through that State to its western boundary on the
Connecticut river.
That pursuant to such authority it has located and constructed
its railroad from tide water in said Portland through the Crawford
Notch in the White Mountains to Fabyan's Place in New Hamp¬
shire, a distance of 88 94-100 miles and also has constructed a
short piece of railroad from the western bank of the Connecticut
river eastward in New Hampshire to Scott's Mills a distance of 2
32-100 miles, and has for a long time operated its said railroad,
carried passengers and freight and earned tolls, and that now by
making connection with other roads becomes a part of the through
lines from the ocean to Canada and the producing States of the
west and as such can share in the profits of the carrying trade of
the country.
And these defendants further answering say that pursuant to
the laws of the States of Maine and New Hampshire the defend-
34
ant corporation on the first of November 1870 negotiated a loan
to aid the construction of its railroad and issued its bonds therefor
to the amount of $800,000.00 payable in gold in the city of Bos¬
ton in the year 1900 with interest at six per cent, per annum pay¬
able in gold in said city of Boston semi-annually until said bonds
become due and payable and at the same date secured the pay¬
ment of the same by a mortgage of its road, its franchise and the
right to operate the same from its terminus in said Portland to
Bartlett in the State of New Hampshire a distance of 61 44-100
miles and also of its rolling stock and other property and equip¬
ment used in the operation of the same (as more fully appears by
its said mortgage deed a copy of which is annexed and marked
Defts. Exhibit, "A") to Woodbury Davis and two of these defend¬
ants Spring and Milliken as Trustees under the same*
That soon thereafterwards said Woodbury Davis died and
Philip Henry Brown of said Portland succeeded him to that trust
so that the Trustees under that mortgage are Samuel E. Spring
Weston F. Milliken and Philip Henry Brown all of said Portland
citizens of the State of Maine.
That all said mortgage bonds are now outstanding and owned
by bona fide holders for value and that said mortgage creates a
fresh and prior lien upon that portion of said railroad between its
terminus in said Portland and said Bartlett in New Hampshire and
upon the equipment thereof and the right to operate the same as
particularly specified in said mortgage.
That the interest coupons on said mortgage bonds were paid as
they tell due until January 1877 when the defendant company in
order to complete that portion of its road west of said Bartlett
defaulted the payment of said coupons and used the income of the
whole road for the year 1877 and a greater part of the same for
the year 1878 for that purpose and so applied from the income of
the said railroad east of Bartlett to the completion of that portion
of the same west of said Bartlett during said two years more than
$100,000.00.
That in the summer of 1877 the bondholders under said mort¬
gage became dissatisfied that the earnings of their said mort¬
gaged property as aforesaid were being applied to the construc¬
tion of said railroad west of said Bartlett upon which portion of
the same their said mortgage did not attach and demanded of their
35
said Trustees the enforcement of the same to secure the payment
of the interest on their said bonds.
That said Trustees under said mortgage of Nov. 1, 1870 com¬
menced proceedings in equity for possession of said mortgaged
property and for foreclosure of said mortgage but that upon an
arrangement being made between the holders cf said mortgage
bonds and said defendant company whereby the defaulted coupons
aforesaid for the years 1877 and 1878 with interest amounting to
$112,320.00 were to be funded and paid in twelve equal semi¬
annual installments of $9,360.00 each the first said payment to be
made on the first of October 1877 the said foreclosure proceed¬
ings were discontinued and dismissed.
That said defendant company have already paid five-sixths of
said funded coupons and interest and also all other coupons on
said bonds hitherto as the same fell due from the net earnings of
its said railroad east of said Bartlett. That they are informed
and believe that although some of the funds received from the
sale of the second mortgage bonds of defendant company of the
same issue of the complainant's alleged bonds may have been
used in common with other assets of that company for the pay¬
ment of interest coupons on said first mortgage bonds yet a much
larger sum has been applied to the construction of that portion
of said railroad west of said Bartlett from the net earnings of the
same road east of said Bartlett.
That the property included in said first mortgage is of much
greater value than the debt secured thereby and that the equity
of the same together with the other property included in defend¬
ant company's second mortgage hereinafter set out is of greater
value when held, owned, and utilized together as a unit than the
same would be if severed and held in separate parts and controlled
by adverse interests.
And these defendants further answering say that on the first
day of November 1871 the defendant corporation for the purpose
of completing and equiping its said railroad in accordance with a
vote of its stockholders by deed of that date at said Portland con¬
veyed in trust and mortgage to Samuel E. Spring Weston F. Mil-
liken and George F. Emery as Trustees all of said Portland
citizens of the State of Maine by virtue of the laws of that State
36
and of tlift State of New Hampshire and to their successors and
survivors all of its said railroad located and to be located in Port¬
land in the State of Maine and thence to its termination at the
western boundary line of the State of New Hampshire with all
the rolling stock, stations, fixtures and franchises thereof and ap¬
purtenances thereto belonging there owned or held or that may
be thereafter acquired by said company also any and all rights
which may be acquired by said company by lease or contract in
any of the railroads forming a through line from Portland to 0g«
densburg with all lands and tenements there taken and held or
which might be thereafter taken and held by said company for the
purpose of its railroad and all the franchise of said company to
build maintain and operate said railroad granted or to be there¬
after granted by the States of Maine and New Hampshire
together with all the cars engines and other movable furniture
machinery and equipments of said railroad and all other personal
property of said company appertaining to and connected with the
customary use and working of said railroad and machinery thereof,
conditioned to secure the payment of its negotiable bonds to the
amount of $3,300,000.00 dated Nov. 1, 1871 payable in gold coin
in the city of Boston Massachusetts, on the first day of Novem¬
ber 1901 with interest thereon at the rate of six per cent, per an¬
num in like gold on the first days of May and November in each
and every year in said city of Boston on the presentation
thereof of the semi-annual interest coupons thereto attached.
That said last named mortgage constitutes a valied lien upon
said mortgaged property to secure the payment of said bonds of
Nov. 1, 1871 according to their tenor subject to a prior lien upon
said last named mortgaged property created by the said first
mortgage of Nov. 1, 1871 to the amount of $800,000.00 and in¬
terest as aforesaid.
The $2,500,000.00 of said mortgage bonds of Nov. 1, 1871
were to be issued to provide for the construction and completion
and equipment of said railroad and the remaining $800,000.00
of the same were to be applied and used only for the liquidation
and removal of said first mortgage bonds of Nov. 1, 1870 but that
the same bonds were never issued for the reason that the holders
of said first mortgage bonds of Nov. 1, 1870 refused to surrender
/
37
their said bonds and accept said last mortgage bonds of Nov. 1,
1871 in exchange therefor and the same could not be soid for a
sum sufficient to liquidate said first mortgage bonds so held as
aforesaid.
That said last mortgage bouds were issued and sold to the
amount only of $2,268,000.00 and are now held by bona fide
holders for value, and that $227,500.00 are pledged and now held
as collateral security for the indebtedness of defendant company,
and the proceeds of all thereof were used by defendant company
towards the construction and completion and equipment of its said
railroad as specified in said mortgage of November 1, 1871 but
whether the complainant is the holder of $80,000.00 of the same
or any part thereof these defendants are not informed save
by said bill of complaint and require such ownership to be
proved.
That the interest upon said last mortgage bonds of Nov. 1,
1871 was paid as the same fell due until November 1876 when the
defendant company became unable to pay the same and have hith¬
erto failed to do so.
And these defendants further answering say that George F.
Emery one of the Trustees named in said mortgage of Nov. 1, 1871
resigned that trust and that this defendant Nathan Webb was ap¬
pointed as provided in said mortgage to succeed him in that office
on the seventeenth of October 1877 and accepted the same and
is now one of the Trustees under the same so that these defend¬
ants are the only trustees under the said mortgage of Nov. 1,
1871.
And these defendants further answering say that they deny that
they have been recreant to their duty as Trustees aforesaid or in
any way neglected the interests of the bondholders entrusted to
their charge but on tile contrary further say that the city of
Portland at the time of default in the payment of interest on said
bonds of Nov. 1, 1871 and ever since has been the holder and
owner of $1,350,000.00 of the same and that the said city acting
in concert with all other known bondholders of like interest in
the year 1876 caused a minute examination into the affairs of de¬
fendant company to be made and accounts to be prepared and
stated showing the respective assets and earnings and expendi-
38
tures of each portion of its road both east and west of said Bart-
lett, and requested that thereafter the accounts of such portions
of said railroad should be kept separate and distinct and that in
pursuance of that request thereafter the accounts have been so
kept showing a result as appears by the discovery given in de¬
fendant company's answer to the complainant's bill.
That all the known mortgage bondholders of Nov. 1, 1871 in¬
cluding said city of Portland making an aggregate of more than
two thirds of those bonds considered it to be for their interest
that the control and management of said railroad should remain in
defendant corporation and requested that these defendants forego
enforcing their security under said mortgage of Nov. 1, 1871 and
that hitherto no such bondholder including the complainants save
by said bill of complaint ever requested or suggested to these de¬
fendants either directly or indirectly that they desired the mort¬
gage of Nov. 1, 1871 to be enforced for their benefit or that they
desired these defendants as trustees to foreclose the same or to
take possession of the mortgaged property or to in any way inter¬
fere with defendant corporations full, free, and perfect control
thereof.
And these defendants further answering say that they believe
that the portion of defendant companys said railroad and property
included in its mortgage of November 1, 1870 is of much greater
value than the aggregate of that mortgage debt, and that the
mortgaged property included in said second mortgage of Nov. 1,
1871 is more valuable as a continuous rai.road under one and the
same management than it would be if the same should be
divided and severed into separate parts and put into the control
of different parties.
That the whole of said railroad property is indivisible and a
unit and when so operated and used is destined to be and become
a valuable and paying property in that it can give transportation
from the system of railroads and interior waters converging near
tlie outlet of lake Champlain to the ocean by the nearest and most
direct route and will eventually afford cheap and quick transit
from Canada and the northwest to tide water at its eastern ter¬
minus to the profit of its owners.
That the portion of said railroad east of said Bartlett would be
39
injured if deprived of connection with other roads leading to the
Canadas and the west if that portion of its road west of Bartlett
should be separated from it; and likewise that portion of said road
west of Bartlett would be without any outlet or terminal facili¬
ties whatever, except upon such unfavorable terms as might be
imposed on it, and of less value than when it is owned and con¬
trolled in connection with the eastern portion of the same rail¬
road.
That these defendants believe a wise and judicious management
of the whole mortgaged property requires the same to be kept a
unit, intact and utilized for the benefit of the mortgaged bond¬
holders as a whole. That they believe the same is wisely
prudently and economically managed by the defendant corpora¬
tion and that for the present it is for the true interest of the said
mortgage bondholders of Nov. 1, 1871 that the possession and
control thereof should remain with defendant corporation.
And these defendants further answering say that they are
requested by said last named mortgage bondholders the aggregate
of whose said bonds amount to more than $1,900,000.00 to abstain
from enforcing their said mortgage for their benefit, and from in¬
terfering with the possession of defendant company of said
mortgage property or from foreclosing the same mortgage for
their benefit.
And these defendants further answering say that they are in¬
formed and believe that the net earnings of that portion of said
railroad east of said Bartlett are in excess of the interest accru¬
ing upon the said mortgage bonds of Nov. 1, 1870 and that the
same are being applied more largely to the improvement of the
remaining portion of the same railroad and in the purchase
of equipment which they believe is only covered by the mortgage
of Nov. 1, 1871 than to the portion of said railroad included in
the mortgage of Nov. 1, 1870.
That they believe that none of the earnings of the mortgaged
property solely included in the mortgage of Nov. 1, 1871 have
been or are being applied to the improvement of the property in¬
cluded in the mortgage of Nov. 1, 1870 and that the same are
neither being diverted or inequitably or unlawfully applied or ex¬
pended.
40
That they are informed and believe that said railroad is gaining
business by steady increase sure to augment the value of the
whole railroad property and that the present is not the proper
time for the same or any part thereof to be sold.
And these defendants further answering say that if in the opin¬
ion of this Honorable Court it has become their duty to enforce
said mortgage of Nov. 1, 1871 for the benefit of the bondholders
secured thereby they stand ready and willing to perform their
duty in the premises in such way as this Honorable Court shall be
pleased to pronounce or to suggest.
And these defendants submit to this Honorable Court that all
and every matters in said complainants bill mentioned and com¬
plained of are matters with respect to which the said complainant
is not entitled to any reliel from a court of equity and these de¬
fendants hopes they shall have the snme benefit of this de¬
fense as if they had demurred to said complainants bill of com¬
plaint.
And these defendants deny all and all manner of unlawful com¬
bination and confederacy wherewith they are by the said bill
charged without this that there is any other matter cause or thing
in the said bill of complaint contained material or necessary for
these defendants to make answer unto and not herein and hereby
well and sufficiently answered confessed averred and avoided or
denied is true to the knowledge or belief of these defendants, all
which matters and things these defendants are willing to aver
maintain and prove as this Honorable Court shall direct; and
humbly pray to be hence dismissed with their reasonable costs
and charges in this behalf sustained.
SAMUEL E SPRING
WESTON F. MILLIKEN
NATHAN WEBB.
T. H. Haskell
Solicitor for Defendants
United States of America ) . , r,, ,oco
District of Maine s,. \ AuSust 5tl)' 1882"
Personally appeared the above named Defendants Samuel E.
41
Spring, Weston P. Milliken and Nathan Webb and severally made
oath that they have read the foregoing answer by them signed
and know the contents thereof that the same is true of their own
knowledge except the matters stated to be on their infor¬
mation and belief and that as to these matters they believe them
to be true.
Before me
T. H. HASKELL
Commissioner of the Circuit Court of the United States
for the District of Maine.
[seal]
42
IN THE CIRCUIT COURT OF THE UNITED STATES,
for the district of new hampshire.
11ST EQUITY.
The Mercantile Trust Company, Complainant,
vs.
The Portland & Ogdenshurg Railroad Company, and Samuel
E. Spring, Weston F. Milliken and Nathan Webb,
Trustees, Defendants.
The replication of the Mercantile Trust Company, complainant, to
the answer of The Portland and Ogdenshurg Railroad Company,
defendant.
This repliant saving and reserving unto itself all and all man¬
ner of advantage of exception to the manifold insufficiencies of the
said answer, for replication thereto saith that it will aver and prove
its said bill to be true, certain, and sufficient in the law to be an¬
swered unto, and that the said answer of the said defendants is
uncertain, untrue, and insufficient to be replied unto by this repli¬
ant ; without this, that any other matter or thing whatsoever in
the said answer contained, material or effectual in the law to be
replied unto, confessed and avoided, traversed, or denied is true ;
all which matters and things this repliant is, and will be ready to
aver and prove as this Honorable Court shall direct, and humbly
prays as in and by its said bill it hath already prayed.
NOBLE & SMITH, Solicitors.
I, Elisiia Newcomb, of Westbrook, in the County of Cum¬
berland and State of Maine, of lawful age, on oath depose and tes¬
tify in answer to interrogatories propounded by Guy C. Noble, so¬
licitor for plaintiff.
Int. 1. State your name, age, residence and occupation ?
Ans. Elisha Newcomb ; age sixty-one ; Westbrook ; roadmast-
er of the Portland and Ogdenshurg Railroad.
43
Int. 2. How long have you been roadmaster?
Ans. About eleven years in all on this road.
Int. 3. What kind of rails were laid on the road originally from
Portland to Fabyans ?
Ann. Iron, fifty-six pounds yer yard.
Int. 4. Has any portion of B division been relaid with steel,
how much, and what kind prior to September 30th, 1881 ?
Ans. There has. I shall have to refer to Mr. Dana's account to
tell how much. All that was bought before that time was laid on
B division. The treasurer's books show six hundred and two (602)
tons.
Int. 5. What was done with the old rails taken up on B divis¬
ion and replaced as you say by steel rail ?
Ans. About one mile was laid as sidings on B division previous
to September, 1881. Most of the balance was relaid in the track
of A division. I should say three-quarters (3-4) of it, and the rest
was sold.
Int. 6. What has been done with the old rail that you have
taken up on B division since September, 1881 ?
Ans. About one mile has been laid in sidings on B division
since that time, and the balance came to A division the same as
the other.
Int. 7. How much steel rail has been put in B division since
September, 1881, where the old rail has been taken up as above
stated ?
Ans. Three hundred and fifty-two and a half (352 1-2) tons.
Int. 8. What part of the road did you call B division ?
Ans. All west of Bartlett line.
Int. 9. How many tons of that steel rail to the mile ?
Ans. We had two kinds of steel rails at first, two hundred (200)
tons, fifty pounds to the yard, the balance fifty-six pounds to the
yard, eighty-eight (88) tons to the mile of the fifty-six pound rail.
Int. 10. In the regular Boston train between Fabyans and Bos¬
ton by North Conway over the Eastern road how far would such
train run on the A division and between what points ?
Ans. Eighty-seven one-hundredths (87-100) of a mile between
North Conway Junction and the Bartlett line.
Int. 11. Does the Eastern and the P. & O. Boad each have a
separate depot at North Conway ?
44
Ans. They do.
Int. 12. What was the condition of the iron rails taken up on
the B division as to wear, and how much were they worth per ton ?
Ans. They were more than half worn, and would be worth half
price.
Int. 13. Why did you take up iron rails that were only half
worn ?
Ans. Because we wanted to put the mountain division in first-
class order. It was considered a dangerous division by the public
generally, and we wanted to make it perfectly safe.
Int. 14. The road through the mountains from Bemis station
to Fabyans is made by excavations out of the side of the Moun¬
tains is it not ?
Ans. Not wholly, but in many places.
Int. 15. It was a very expensive road to build was it not ?
Ans. It was.
Cross-Examination by T. II. Haskell, Esq., solicitor for defendant.
Cross-Bit. 1. What is the present condition of the track-road
bed, and stations of the B division ?
Ans. Better than ever before on the whole. I should say in
good condition.
Cross-Int. 2. Which is in better condition A or B division ?
Ans. B division.
Cross-Int. 3. State in what respects ?
Ans. Track, road-bed, and stations.
ELISHA NEWCOMB.
I, John F. Anderson, of Portland, in the County of Cumber¬
land and State of Maine, of lawful age, on oath depose and testify
in answer to interrogatories propounded by Guy C. Noble, solicitor
for plaintiff.
Int. 1. State your name, age, residence and occupation ?
Ans. John F. Anderson ; sixty ; Portland ; civil engineer.
Int. 2. How long have you been connected with the P. & 0.
road, and in what capacity ?
45
Arts. From its start, as its chief engineer.
Int. 3. Did you have supervision of the construction of the road ?
Ans. I did.
Int. 4. Between what points was it first constructed, under the
first mortgage ? (Question withdrawn.)
Int. 5. When you speak of Bartlett in arriving at the distance
between Portland and Bartlett what point in Bartlett do you mean ?
Ans. I mean the line between the towns of Conway and Bart¬
lett where the road crosses the line.
Int. 6. What is the distance between that point, Bartlett and
F abyans f
Ans. I should say approximately twenty-seven and one-half
(27 1-2) miles. The exact distance is twenty-seven and five hun¬
dred and ninety-six one-thousandths (27 596-1000) miles.
Int. 7. From Fabyans to Scotts Mills you use the Boston, Con¬
cord and Montreal road-bed, do you not ?
Ans. Yes sir.
Int. 8. What is the distance from Fabyans to Scotts' Mills over
the B. C. & M. upon which your trains are run?
Ans. I don't know.
Int. 9. What is the distance from Scotts' Mills to the Vermont
line on the west side of the Connecticut river by your line ?
Ans. Two and thirty-two one-hundredths (2 32-100) miles.
Int. 10. Did your company build the bridge across the Connec¬
ticut river?
Ans. They did.
Int. 11. Since you built to Scotts' Mills from Lunenburg have
you used the B. C. & M. track between there and Fabyans?
Ans. I have.
Int. 12. How long has that been ?
Ans. Since December 22nd, 1875.
Int. 13. Give the distance between Portland and the Bartlett
line ?
Ans. 61 438-1000 miles.
Int. 14. How far from the Vermont tine to Lunenburg station?
Ans. Four-tenths (4-10) of a mile.
Int. 15. What is the distance from North Conway station to the
Bartlett line ?
Ans. Two and twenty-four one-hundredths (2 24-100) miles.
46
Int. 16. From the junction of the Eastern railroad with the
Portland and Oo;densburg to the Bartlett line what is the distance ?
O O
Ans. Eighty-seven one-hundredths (87-100) miles. I should
say eight hundred and seventy-five thousandths of a mile.
Int. 17. In your opinion what would it cost to build railroad
track, including iron, to connect B division at Bartlett line with
the Eastern road at the junction ?
(Question objected to as immaterial.)
Ans. I cannot give an estimate.
Int. 18. In your opinion would it cost over at the rate of $10,-
000 a mile. (Same objection.)
Ans. I should think it might cost between $10,000 to $15,000
to the mile, but there is a mass of ledge that crops out of the
ground in that vicinity. If the line encounters it it would mate¬
rially increase the cost.
Cross-Examination by T. II. Haskell, solicitor for the defendant.
Cross-Int. 1. What is the distance from Bartlett line to the
Vermont line over defendants' location ?
(Question objected to as immaterial.)
Ans. Forty-seven and four hundred and seventy-two one thou¬
sandths (47 472-1000) miles.
JOHN F. ANDERSON.
I, John W. Dana, of Portland, in the County of Cumberland
and State of Maine, of lawful age, on oath depose and testify in
answer to interrogatories propounded by Guy C. Noble, solicitor
for plaintiff.
Int 1. State your age, residence, and occupation ?
Ans. Thirty-nine (39) years; residence, Falmouth, Maine; oc¬
cupation, treasurer of Portland and Ogdensburg Railroad Company.
Int 2. How long have you been in the service of this company,
and in what capacity ?
Ans. From June 18, 1873, to May 8, 1876, as cashier, from that
time until the present as treasurer.
47
Int 3. Had you any experience in railroading before ?
Ans. None.
Int 4. Have you had charge of the general books of your com¬
pany, showing the earnings and disbursements of your company
since the road was opened to Fabyans ?
Ans. Yes, in the capacity before stated, as cashier I did the
posting of entries as made by the treasurer; as treasurer I have
had full responsibility of the books.
Int 5. What are the books ?
Ans. The principal books are cash book, journal, ledger, books
showing the operating expenses, and stock book.
Int 6. Do these books show any of the details of the earnings
and disbursements of the different departments of the road ?
Ans. They show the details of the disbursements, but not of
receipts.
Int 7. Where are the details of the receipts kept, and by whom ?
Ans. They are kept by the general freight and ticket account¬
ant in his office. General freight and ticket accountant C. II. Foye.
Int 8. When the earnings of the freight and passenger business
of the road are returned to you by Mr. Foye, is it divided between
the A and B divisions ?
Ans. No, they are not.
Int 9. Where is such division made, and by whom ?
Ans. In my office, by my assistant.
Int 10. Where do you get your data to divide by ?
Ans. We divide upon mileage.
Int 11. IIow much mileage of road do you give to A, and how
much to 1), in such division ?
Ans. Sixty (60) miles to A, and fifty (50) miles to B.
Int 12. In making the division between Fabyans to Portland,
how much ?
Ans Sixty miles (60) miles to A, thirty miles (30) to B.
Int 13. What is comprised in the A division, and what in the 15?
Ans. From Portland to North Conway station comprises A divi¬
sion ; from North Conway station to the Connecticut river com¬
prises the B division, for purposes of division of receipts and ex¬
penses.
Int 14. What is the fifty (50) miles composed of; between what
points ?
48
Ans. The location of P. & 0. railroad between North Conway
station and Connecticut river.
Int 15. Do you run on that location?
Ans. No, we do not.
Int 16. Then why do you give it?
Ans. For convenience in figuring.
Int 17. Is there any convenience in figuring that compensates
for loss of four miles of actual haulage on B division ?
Ans. I don't know that there is such loss.
Int 18. On what line do you run between North Conway and
Lunenburg, and the actual distances?
Ans. From North Conway to Fabyans on line of the P. & 0.
railroad, from Fabyans to Scotts Mills on the line of the Boston,
Concord and Montreal railroad, from Scotts Mills to Lunenburg on
the line of the P. & 0. railroad. I don't know the actual distances.
Int 19. How are you able to state then that there is not a loss
of four miles in the division, as above stated ?
Ans. I do not state that there is not a loss of four miles.
Int 20. Don't you understand that there is a loss of four miles
to B division in such division ?
(Question objected to as imcoinpetent and irrevelant.)
Ans. No, I do not understand that there is such a loss.
Int 21. Why do you put the B division in as fifty (50) miles ?
Ans. For convenience in figuring, and because I understood it
to be the fifty (50) miles on the location.
Int 22. A location that was never built on you mean ?
Ans. A portion of the location.
Int 23. How many miles ?
Ans. I don't know.
Int 24. Who gave you this basis of division or did you invent
it?
Ans. It was adopted after consultation with various officers of
the road.
Int 25. What officers and when ?
Ans. President, superintendent, general ticket agent, in the
year 1877.
Int 26. Do you as a railroad man say that it is just to the B
division to assume a mileage of fifty (50) miles as a basis of di¬
vision if it is in reality four miles less than the actual mileage, and
49
is the simple convenience of keeping accounts, and the fact that an
original location that was never built on is less than the actual
miles of road over which the business is done, a sufficient reason
for such division ?
Question objected to as immaterial.
Ans. If you really want to get at my reasons for the division
and will give me time I will write them out clearly, so the court
can understand it and you too.
Int 27. The orator repeats the question and asks for an answer
that may become a part of this deposition.
Ans. We considered the reasons sufficient for making the di¬
vision as we did. The divisions were not made for absolute accu¬
racy. But to ascertain approximately the earnings of the two sec¬
tions of the road. I have no farther answer to make.
Int 28. Do you decline to make any further answer to the
question ?
Ans. No.
Int 29. Will you then answer the question ?
Ans. If the mileage as used by us in division is in reality four
miles less than the actual mileage and there were no other consid¬
erations, I should say the division would be unjust to B division.
The simple convenience of keeping accounts and the fact that the
original location is shorter than the line over which the trains are run
would not if there were no other considerations, be sufficient rea¬
sons for keeping the account as we do.
Int 30. Please state what you mean by other considerations,
what they are ?
Ans. The Bartlett line which is the terminus of the road cov¬
ered by the first mortgage of November 1, 1870, is some two miles
West of North Conway station; in our division that two miles is
included in the B division. We believe the earnings over that two
miles to be much larger than on any portion of the B division west
of Fabyans. The B division also is credited in our division with
all the traffic going from Fabyans on to the Eastern railroad, and
return by North Conway junction, and such traffic passes over a
portion of A division although credited to B. The divisions were
instituted to ascertain approximately the earnings of the B section
or that section of the road covered by the mortgage of November,
1871, as a first mortgage. It was much more convenient to assume
50
dred and ten
six-elevenths
that the distance from Portland to Fabyans was ninety (90) miles
and to divide into one-third (1-3 ) and two-thirds (2-3), and to as¬
sume that the distance from Portland to Lunenburg was one hun-
110] miles, and divide into five-elevenths [5-11] and
6-11] than to divide upon actual mileage, and was
considered accurate enough and fair enough for the purposes for
which the division was instituted. That is to ascertain the relative
values of the two sections of the road, as a matter of information
for the directors of the company.
Int 31. Were these considerations you have mentioned actually
discussed by you and the other officers wrhen you made the di¬
vision in 1877 ?
Ans. They were discussed and considered but I cannot say pos¬
itively by whom.
Int 32. Were they when you were at any meeting jointly in
consultation ?
Ans. 1 think we had no meetings for consultation but the mat¬
ter was discussed between us at various times for several weeks.
Int 33. Is that the mileage used by the superintendent in re¬
porting to you the freight, and passenger car service on the B di¬
vision ?
Ans. I do not know.
Int 34. Will you please examine your books and see if in re¬
porting to you the service of cars on B division between Lunen¬
burg and North Conway he does so on the basis of fifty-four [54]
miles.
Ans. There is nothing in my books to show. He reports to me
the total mileage of the month on all cars, and there is no detail in
my office to show how many cars were used in making this mileage,
or how many miles he credits a car for the run from North Conway
to Lunenburg.
Int 35. Did you not hear him testify to-day that he credited
such cars running from North Conway to Lunenburg with fifty-four
miles each trip ?
Ans. No, I can't swear that I did.
Int 36. Have you not understood either from him or other
sources that he has done so ?
Ans. No, I have not. 1 did not know until I heard the matter
discussed here yesterday and to-day that it was assumed that that
division was fifty-four (54) miles.
51
Int 37. Did you not hear the superintendent say here to-day
that it was fifty-four (54) miles ?
Ans. 1 can't say that I did. I have heard fifty-four miles stated
as the distance several times to-day, but I can't swear that I heard
the superintendent testify that that was the distance.
Int 38. You claim that the A division has given the (B division
the use of its road from North Conway to Bartlett line, do you ?
Ans. I do.
Int 39. What was the consideration of that gift?
Ans. We did not consider that any was needed. The road was
operated as entirety, and we made a division, as I have before sta¬
ted, for information only.
Int 40. In running the road you have looked at the interests of
the whole line as an entirety, and have not regarded the two divis¬
ions as distinct and separate from each other, have you not ?
Ans. We have.
Int 41. And the basis of division established by the officers in
1877, was for convenience and information as you have said, simply ?
Ans. Yes, with a reasonable view to accuracy.
Int 42. Who prepared the statements and figures that are set
forth in the answer in this case, showing the earnings and expenses
of the divisions, and also the disbursements ?
Ans. I did.
Int 43. Do you understand the basis and the details upon which
the said statements are made ?
Ans. I do.
Int 44. What is the local passenger rate on the A division, and
what on (3, per mile ?
Ans. I do not know. That is not in my department. That is
in the department of the general ticket agent—Mr. Foye.
Int 45. In the return to you of the divisions made, if any in¬
justice was done to (B would you know it ?
Ans. The divisions are made by me, or in my office.
Int 46. If the rate per mile given to the A or (3 division, eith¬
er on its local or its through business were unjust, would you know
it?
Ans. I would.
Int 47. Will you now give the divisions on say a thousand tick¬
ets between Fabyans and Portland, as you make it?
52
Ans. A thousand tickets at three dollars and a half ($3.50) a
ticket would amount to thirty-five hundred ($3500) dollars. In the
division, A would receive twenty-three hundred and thirty-three
and thirty-four one-hundredths ($2333.34) dollars, and (B eleven
hundred sixty-six and sixty-six one-hundredths ($1166.66) dollars.
Int 48. On a thousand tickets from Portland to North Conway
how much would A receive ?
Ans. Twenty-two hundred ($2200) dollars.
Int 49. How do you make the division of operating expenses
between A and (B; give the basis; say first the salaries and expen¬
ses of the general officers of the road ?
Ans. They are divided into one-third and two-thirds—one-third
to (B, and two-thirds to A.
Int 50. On what mileage is that one-third [1-3] and the two-
thirds [2-3] based on ?
Ans- Ninety (90) miles between Portland and Fabyans.
Int 51- How do you divide the road bed, and track and bridges,
the repairs?
Ans. At the North Conway station repairs made on road bed
and track east of North Conway are charged to A, and repairs
made west of North Conway are charged to (B.
Int 52. As part of the expenses, is the rent paid to the Boston,
Concord and Montreal road charged directly to 32 ?
Ans. It is.
Int 53. How many steel rails have been laid on 32 division ; the
tons to September 30th, 1881 ?
Ans. In round numbers six hundred and two [602] tons.
Int 54. How many since September 30th, 1881 ?
Ans. Three hundred [300] tons purchased in April, 1882.
Int 55. What was done with the iron rails that were taken up
and replaced by this six hundred and two (602) tons of steel rails?
Ans. I understand that some of them were used in sidings on
B division, and the remainder brought down to A division and used
there, so far as they were fit for use.
Int 56. What length of sidings do you understand was made on
B division out of these old rails before September 30th, 1881 ?
Ans. About one and one-quarter (1 1-4) miles.
Int 57. Against whom did you charge the expense of the steel
rails put down on B division prior to September 30th, 1881 ?
Ans. B division.
53
Int 58. What account did you keep of the old rails taken up
on B division ?
Ans. Not any.
Int 59. Has B had any credit for those ?
Ans. It has not.
Int 60. Why not ?
Ans. Because it was overlooked.
Int 61. Upon what basis have you divided the repairs on loco¬
motives, passenger and freight cars ?
Ans. On the basis of mileage made by them as reported to me
by the superintendent. He reports the number of miles run on
each division by locomotives, passenger and freight cars.
Int 62. Upon what basis do you divide the fuel used on locomo¬
tives and cars ?
Ans. On the miles run by locomotives for fuel used on locomo¬
tives, and one-third (1-3) and two-thirds (2-3) for fuel used in cars.
Int 63. Upon what basis do you divide the wages of engine
men and train men ?
Ans. One.third to B, two-thirds to A.
Int 64. September 30th, 1881, what rolling stock did A own,
and what did B own ?
(Question objected to on the ground that it is a question of law,
and not of fact. Question withdrawn.)
Int 65. Did you make up the statement of the rolling stock
embraced in the answer, and the dates of purchase ?
Ans. I did.
Int 66. What rolling stock do you consider as belonging to di¬
vision A ?
Ans. Whatever was purchased prior to November 1st, 1870,
we have treated as under the first mortgage dated November 1st,
1870, and that purchased since as under the mortgage of Novem¬
ber 1st, 1871.
Int 67. Is all the rolling stock enumerated in the answer page
twenty-one [21] and twenty-two [22] printed copy.
Ans. Yes all acquires up to September 30th, 1881.
Int 68. Against whom do you charge the rent of rolling stock
hired by you ?
Ans. It is not charged in the operating expenditures of either
division but is shown in the statement of disbursements in addition
54
to operating expenses in the answer, as chargeable against B di¬
vision.
Int 69. When was the B division opened to traffic ?
Ans. Fully opened in December 1875. The times when the
different portions were opened for business is shown in the annual
report of this company for 1878.
Int 70. Is it not a fact that there were some earnings on the B
division prior to September 30th, 1877 ?
Ans. It is.
Int 71. After the road was opened to Bartlett were there not
net earnings on that portion the year following.
Ans. No account was kept of that division for that year. I
can't tell.
Int 72. Were there any net earnings on B division, or any por¬
tion of it, the first year after it was opened through to Lunenburg ?
Ans. I cannot tell, as no separate accounts were kept until after
October 1st, 1877, and therefore cannot tell whether there were
any net earnings on B division prior to that time?
Int 73. Prior to October 1st, 1877, has B ever received any
credit for use of its rolling stock ?
Ans. No. No separate accounts were kept prior to October
1st, 1877. The earnings of all the rolling stock went into the
general fund.
Int 74. Has any credit been given B for the earnings of its
rolling stock since October 1st, 1877 ?
(Question objected to because it assumes B to own rolling stock
which is not the fact.)
Ans. No.
Int 75. You have not treated the rolling stock as belonging—a
portion to A division, and a portion to B, as you would if A and
B had been independent, and connecting roads ?
Ans. We have not.
Int 76. You have treated it all as an entirety belonging to the
P. & 0. railroad company, have you ?
Ans. Yes, for purposes of traffic.
Int 77. You have not considered B, though owning two-thirds
(2-3) or more of the rolling stock, as entitled to anything for its
use while on the A division ?
Ans. Yes we have.
55
Int 78. Where is the consideration for its use shown in the
earnings of the B division?
Ans. A repairs B's rolling stock according to its mileage on A
division, and B has the use of A's rolling stock, and repairs it ac¬
cording to its mileage on B division. We have shown in our an¬
swer to the court what the result would be if each division repaired
its own rolling stock, and charged the other division for mileage of
its rolling stock.
Int 79. Do you know what custom or method of accounts rail¬
road companies usually adopt where the line of railroad is made up
of different divisions, in finding the net earnings of each division ?
Ans. No, 1 do not.
Int 80. Have you understood that such railroad company in ar¬
riving at such net result usually treats its different divisions as in¬
dependent roads connecting with each other ?
Ans. I do not know. 1 suppose that each road is governed by
the considerations of its own case.
Int 81. In answer to question 78 you have referred to a basis
for charging for the use of rolling stock as set forth in defendants'
answer, where did you get such basis ?
Ans. From consultation with president and superintendent of
the company.
Int 82. Please state whether the rate given therein for use of
locomotives and cars per mile is sufficient to cover the cost of re¬
pairs, depreciation and interest, as applicable to your road ?
Ans. I should say not, but is the customary rate such as we pay
other roads.
Int 83. If you take the aggregate repairs upon locomotives and
cars separately for any one year, and divide it by the number of
miles run by each respectively, would you not arrive at the cost of
repairs per mile run on your road ?
Ans. Yes, I should say it would.
Int 84. Have you ever done so ?
Ans. I cannot recall that I have.
Int 85. Can you state that the figures in the statement referred
to which is embodied in the answer of defendant, as a charge per
mile for use of engines and cars, would even cover the repairs of
such engines, and cars upon your road ?
Ans. I cannot state without figuring it to see.
Int 86. Will you please furnish printed copies of the annual re-
56
ports of your road since November 1st, 1871, to be appended to
and used in connection with your deposition ?
Ans. Yes if I can obtain them.
(Defendant objects to introduction of said reports as part of this
deposition as incompetent and irrelevant in this connection.)
Int 87. State whether the several printed annual reports which
your company have issued from year to year referred to in answer
to question 86 are correct and accurate statements of the trial
balances of the ledger of the company ?
Ans. I should say to the best of my knowledge and belief they are.
Int 88. Commencing with the statement in the annual report
ending September 30th, 1881, and deducting therefrom the state¬
ment of the trial balance for the preceding year, and so on deduct¬
ing from such remainder the trial balance of the next preceding
year, and so on to and including the year ending January 1st, 1870,
would you not arrive at the net result of the business and the
standing of the company for each fiscal year as shown on the books
of the company f
(Question objected to as immaterial.)
Ans. Yes.
Int 89. Please give us a statement of the bond account under
the mortgage of November 1st, 1871, the amount issued, the
amount disposed of, and to whom, and the amount received there¬
from by the company ?
Ans. The total issue was $3,300,000
Sales, 2,268,000
Leaving a balance of $1,032,000
Of this amount there is reserved
To retire the bonds of November 1st, 1870, 800,000
Leaving a balance of $232,000
Which is disposed of as follows:
Collateral to Dalton Construction Loan, $108,000
44 44 J. B. Brown & Sons, 34,000
44 44 W. H. Anderson, 75,000
44 44 G. F. Pattons' Sons, 9,000
4k (( Portland Company, 1,500
Remaining in hands of Treasurer, 4,500
k $232,000
57
Int 90. Please produce your journal, ledger, and operating ex¬
pense book ; what is the amount of bonds issued of November 1st,
1871, issued each year between 1877 and 1881, inclusive ; also,
produce book showing division of the earnings and operating ex¬
penses between A and B divisions during the same period ?
Ans. Bonds issued during the year ending September 30th,
1877, ten thousand ($10,000) dollars. During the year ending
September, 30th, 1878, two hundred and fifty-five thousand nine
hundred ($255,900) dollars. During the year ending September
30th, 1879, sixty-five hundred ($6500) dollars. During the year
ending September 30th, 1881, four hundred and fourteen thousand
($414,000) dollars. None sold during year ending September 30,
1881. Total sale of bonds during these years six hundred and
eighty-six thousand four hundred ($686,400) dollars.
Int 91. Please state the gross amount of the net earnings of
the B division for each of the five years referred to in the last
question as showm by your book ?
Ans. For the year ending September 30, 1877 no division was
made. The net amount for the following four years was as follows :
Year ending September 30th, 1878, $30,611.97
1879, 28,441.36
1880, 17,140.83
1881, 10,124.52
Total net earnings, $86,318.68
Int 92. Do the figures given as receipts on bond account, and
as receipts on net earnings account, give the entire amount receiv¬
ed by the company on account of B division during those years ?
Ans. I should say yes, so far as I know.
Int 93. For what has such amounts so received on bond account
and on net earnings account been expended or applied ; give the
gross amount of items of expenditure ?
Ans. Equipment account, $57,903.62
Construction account, 38,381.02
Interest on bonds of November 1st, 1872, 365.25
Interest on City of Portland bonds, 3,259.50
Dalton Construction Loan, paid on account, 15,312.54
Interest on Dalton Loan account, 10,787.44
Discount on bonds of November 1st, 1871, 464,351.27
Total,
$590,360.64
58
Int 94. Please give the amounts of bonds sold, and the net
earnings received as herebefore stated ?
(Question withdrawn.)
Int 95. What is the balance ?
Ans. The difference between the sum of bonds sold and the net
receipts as shown in the answers to interrogatories 90 & 91 and ex¬
penditures as shown in answer to interrogatory 93, $182,357.74.
Int 96. To what time was interest paid on the bonds issued
November 1st, 1871, being those in controversy in this suit?
Ans. To and including May 1st, 1876.
Int 97. Has the company refused to pay the interest on said
bonds accruing since that time ?
Ans. Not to my knowledge.
Int 98. Where were the coupons on said bonds made payable ?
(Question objected to as the coupons are the best evidence.)
Ans. In the City of Boston.
Int 99. At what place in the City of Boston did you pay the
coupons on said bonds prior to 1876 ?
Ans. Usually at the banking house of Foot & French.
Int 100. Who was treasurer in 1876, and where is he?
Ans. W. H. Anderson, who resides in Portland, was treasurer
until May 8th, 1876, and I have been treasurer since.
Int 101. Who is the custodian of the stockholders and the di¬
rectors record of your company ?
Ans. Mr. Charles H. Foye, clerk of the company.
Int 102. What is meant by the Dalton loan, won't you ex¬
plain it ?
Ans. A loan to the company by certain banks and individuals
for construction of the line from Scotts mills to Lunenburg, called
the Dalton loan because that line runs through the town of Dal¬
ton, New Hampshire. The amount of the loan was $51,041.88
made on the fourth day of October, 1875.
Int 103. How much has been paid on that loan up to Septem¬
ber 30th, 1881?
Ans. Twenty-two thousand nine hundred sixty-eight dollars and
eighty-two ($22,968.82) cents.
Int 104. How has that sum been disposed of as between the A
and B divisions ?
Ans. Whatever has been paid since we commenced to divide
the accounts should properly be borne by B division, but this is
59
not one of the classes of accounts of which any division has been
made.
Int 105. Since you began dividing accounts how much has
been paid on this loan from the earnings applicable to B division
up to September 30th, 1881?
Ans. Fifteen thousand three hundred and twelve dollars and
fifty-four ($15,312.54) cents.
Int 106. Who were the directors who have endorsed the paper
of the company and for which a commission has been paid them ?
Ans. William Deering, John E. Donnell, D. W. Clark were the
principal ones, that are not now directors.
Int 107. Do you know how much the mileage of the road has
been put at in your settlement with foreign companies ?
Ans. No, except from hearsay.
Int 108. You have stated that in your apportionment of mile¬
age between the A & B divisions where the haulage was over the
entire line you have allowed A (6-11) six-elevenths or sixty (60)
miles and B (5-11) five-elevenths or (50) fifty miles. In your di¬
vision of rates received from foreign roads, where your mileage has
been allowed at one hundred and fourteen (114) miles, how has it
J>een apportioned between A & B ?
Ans. Five-elevenths (5-11) to B and six-elevenths (6-11) to A.
Int 109. The extra allowance of four (4) miles is for actual
haulage over the Boston, Concord & Montreal road, for which B
pays to latter road, now when it—the pay—is received by the com¬
pany do you think it just to B division that any part of it should
be allowed to A, in making the apportionment ?
(Question objected to because it assumes a fact not testified to
by the witness, and because it is immaterial.)
Ans. I do under the circumstances under which' the division is
made.
Int 110. Have you stated those circumstances substantially in
this deposition heretofore ?
Ans. I have.
Int 111. Please state what directors have received bonds of the
company, and at what discounts, and what amount of bonds ?
Ans. The company had become indebted to certain directors
for loans, and had secured them by pledging bonds of the company
of issue of November 1st, 1871. It becoming apparent that the
company could not pay these loans, the bonds held by each director
60
as collateral were surrendered to him, and full title thereto given
to him in payment of the loans by him, as follows :—
Bonds. Debt. Discount.
A. Spring, $51,000 00 $17,154.88 $33,845.12
J. B. Dicker, 43,000.00 11,035.28 31,964.72
H. N. Jose, 75,333.34 20,516.81 54,816.53
W. L. Putnam, 32,000.00 9,618.00 22,382.00
W. F. Milliken, 51,000.00 11,422.95 39,577.05
D. W. Clark, 87,333.33 22,786.37 64,546.96
S. J. Anderson, 30,000.00 5,715.37 24,284.63
$369,666.67 ' $98,249.66 $271,417.01
The sale of these bonds to Spring was made November 7th, 1877,
and the sale of these bonds to the other directors was made March
6th, 1880.
Int 112. To whom did these parties above named loan, and how
was the money used ?
Ans. They loaned to the P. & O. railroad, and the loans were
used for the general purposes of the company, without reference
to A or B division, to pay construction accounts, coupons, pay¬
rolls, and floating debt.
Int 113. Please state whether Mr. W. B. Hatch examined your
books last April or May in reference to the questions that are under
examination in this case, and whether you furnished him informa¬
tion in respect to the same, and such aid as he asked for, and wheth¬
er you furnished him statements of the earnings of the road, and
disbursements, and statement of the bond account, also copies of
certain parts of the operating expense account showing the appor¬
tionment vou have made to A and B divisions, and whether the
«/ y
same were correct ?
Ans. He did. I furnished him all the aid and information he
desired, and gave him full and free access to all the books of the
company, and sent him statements of the bond account, earnings,
operating expenses, and disbursements, showing him the apportion¬
ment between the A andi? divisions. They were true copies of the
books, and I believe were substantially correct. There may have
been some minor clerical error.
Int 114. Have you produced the annual reports called for, what
are they, and will you annex them to your deposition ?
(Reports objected to as incompetent.)
Ans. I have produced them with exception of report for the
year 1878, and here append them to my deposition.
I
61
Cross-Examination by T. II. Haskell, solicitor for the defendant.
Cross-Int 1. In answer to interrogatory 91. yon have stated the
gross amount of net earnings for the years 1878, 1879, 1880, 1881,
showing a decrease each year, please give the cause of the same ?
Ans. The decrease was caused by the increase of operating ex¬
penditures owing to customary wear and tear of road-bed and track
and rolling stock. In 1880 the first purchase of rails was made to
replace old rails on that division. In 1881 further purchase of
rails was made to replace rails worn out on that division.
Cross-Int 2. In answer to interrogatory 95, you stated a balance
of $182,357.74, between the bonds sold and net receipts as shown
in answers to interrogatory 90 and 91, and expenditures in inter¬
rogatories 93, please state what application and disposal was made
of that balance ?
Ans. According to result found by the expert accountant Mr. R.
Stuart Chase, to whom reference is made in defendants' answer,
there was a deficit between the receipts and expenditures on B di¬
vision of some $122,000. I should say that so much of this $182,-
357.74 was used to pay that deficit. The remainder was doubtless
used for the general purposes of the company in operating the
road, as the bonds of November 1st, 1871, are secured by mortgage
over the whole line it was considered proper to expend the receipts
from those bonds on any portion of the line, according to the ne¬
cessity of the company.
JNO. W. DANA.
I, Charles H. Foye, of Portland, in the County of Cumber¬
land and State of Maine, of lawful age, on oath depose and testify
in answer to interrogatories propounded by Guy C. Noble, counsel
for plaintiff.
Int 1. State your name, age, residence, and occupation ?
Ans. Charles H. Foye ; age, forty ; Portland ; clerk and gener¬
al ticket agent of the Portland and Ogdensburg railroad company.
Int 2. What have you to do with the freight and passenger
traffic ?
Ans. All business generally passing through the general ticket
62
office is transacted by myself, and in addition I receive and account
to the treasurer for the income from freight traffic.
Int 3. Who makes the divisions and settlements with foreign
roads, and also with the agents, that is station agents ?
Ans. That is part of my duty.
Int 4. How long have you been engaged in this capacity ?
Ans. I have had oversight of the passenger and freight traffic
accounts since the road commenced operations, and I was elected
clerk of the company on the seventeenth of January, 1871.
Int 5. What year did the road commence operations ?
Ans. The first regular passenger train was run on the thir¬
teenth of September, 1870.
Int 6. When were you first connected with the road, and in
what capacity ?
Ans. I entered the employment of the company on the second
day of March, 1869, as the then treasurer's assistant.
Int 7. Who was the treasurer ?
Ans. Augustus E. Stevens.
Int 8. Who kept the treasurer's books ?
Ans. I had charge of the treasurer's books from March, 1869
to about June, 1873.
Int 9. Who succeeded you in that duty ?
Ans. John W. Dana, who is now treasurer.
Int 10. How much is the capital stock of the company?
Ans. The company was chartered with a capital of two million
dollars, not all subscribed, and on the seventh of March, 1881, the
capital stock was fixed at ten thousand, six hundred and thirty
shares, par value of one hundred dollars each. The city of Port¬
land owns a majority of the stock.
Int 11. Who has charge of the stock and transfer book; who
has now, and who has had ?
Ans. The stock ledger is kept in the treasurer's office, and I
have made most of the entries since it was opened.
Int 12. At the time the second mortgage bonds were issued
and sold, was there any separate account of the receipts for those
bonds kept, or disbursements of the proceeds of the bonds ?
Ans. Mr. Dana can answer that question better than I, as he is
more familiar with the books than I am.
Int 13. You had charge of the books at that time ?
63
Ans. I had charge of the books at the time the second mort¬
gage was executed, as to the proceeds of the bonds the books will
show.
Int 14. Who makes the passenger rates of the Portland and
Ogdensburg road ?
Ans. I make them.
Int 15. Is the book marked 'Exhibit A' annexed to your depo¬
sition a tariff of passenger fares, and does it show distances between
stations ?
Ans. It shows passenger fares, and distances used in the use of
mileage tickets ?
Int 16. Does it not show the distances between stations in even
miles, avoiding fractions ?
Ans. Yes.
Int 17. Point out on the book any stations between Portland
and Fabyans where this is not true ?
(Question withdrawn.)
Int 18. Are the distances given in the tariff marked "Exhibit
A" those in use for the division of the freight and passenger traf¬
fic, and also for arriving at car and engine mileage on your road ?
Ans. Yes, to all so far as I know, as to freight and passenger,
yes. I don't know as regards car and engine mileage. I suppose
it is used for the latter.
Int 19. Look at "Exhibit A" give us the terminals of division
A, and the distance?
Ans. Portland and North Conway, sixty (60) miles. I have not
made the divisions and am not responsible for them.
Int 20. Give the terminals of B division, and the distance be¬
tween ?
Ans. North Conway to Fabyans, thirty (30) miles has been used
as B division. In the division of joint business between Fabyans
and points east of North Conway, North Conway and Lunenburg
fifty (50) miles, in the division of joint business between Lunen¬
burg and points east of North Conway.
Int 21. What is the fare from Fabyans to Boston by the Eastern
railroad from North Conway ?
(Objected to as immaterial. Question withdrawn.)
Int 22. In establishing this tariff what do you make the rate
per mile on local business from Portland to North Conway ?
64
Ans. Three and eighty-four one hundredths (3 84-100) cents
per mile.
Int 23. What between North Conway and Fabyans?
Ans. Six and forty-five one hundredths (6 45-100) cents per
mile.
Int 24. Why do you make the rate on B division more than on
the A ?
Ans. The original rate from North Conway to Fabyans was one
dollar and fifty cents, about five cents per mile, which rate we
found used by the Boston, Concord and Montreal railroad on their
mountain division, but to maintain the through rate between Bos¬
ton and Fabyans, which had been reduced by change in Eastern
railroad tariff, we were obliged for our own interest to increase
our local rate from North Conway to Fabyans to two dollars.
Int 25. When you use the words "for our own interest" you
mean particularly the A division, do you not ?
Ans. I mean the interest of the Portland and Ogdensburg rail¬
road company
Int 26. When you speak of the interest of the Portland and
Ogdensburg railroad company, you mean the road as entirety, and
do not regard the interests or rights of the A or B division, sepa¬
rately ?
Ans. As an official of the Portland and Ogdensburg railroad
I do not know of any division of rights as intimated in the ques¬
tion. I regard it as an entirety. I know of no other way to re¬
gard it.
Int 27. That part of the road that is covered by the mortgage
of November, 1870, is called the A division, is it not?
Ans. It is.
Int 28. And that part of the road upon which the mortgage of
November, 1871, is a first mortgage, is called the B division, is it
not ?
Ans. It is.
Int 29. How long has the tariff shown in "Exhibit A" been in
operation ?
Ans. Since November 1, 1874, I should have said in 1876, as
changes of the tariff of 1874 had been made.
Int 30. What is the local tariff between Portland and North
Conway ; give the figures ?
65
Ans. Two dollars and twenty cents.
Int 31. Which division gets credit for that?
Ans. The A division.
Int 32. What is the local tariff from North Conway to Fabyans ?
Ans. Two dollars.
Int 33. Which division gets credit for that ?
Ans. B division.
Int 34. What would the two local rates amount to ?
Ans. Four dollars and twenty ($4.20) cents.
Int 35. What is the relative per centage of each ?
Ans. A division has fifty-two and four-tenths (52 4-10) per cent,
B division forty-seven and six-tenths (47 6-10) per cent.
Int 36. What is the fare from Portland to Fabyans?
Ans. Three dollars and fifty ($3.50) cents.
Int 37. Mow do you divide or apportion that between the A and
B divisions ?
Ans. A division received two-thirds, and B division one-third,
or two dollars and thirty-three ($2.33) cents to A division, and one
dollar and seventeen ($1.17) cents to B division.
Int 38. How much or what rate per mile is that on each divi¬
sion ?
Ans. That is three and nine-tenths (3 9-10) cents per mile, on
the mileage used on this division of rates, for the A and B division ?
Int 39. You have stated that vou had nothing to do with the
o
dividing of the earnings on the A and B division, by whose direc¬
tion was the basis you have used in dividing the earnings made ?
Ans. The divisions have been made up in the treasurer's office,
but 1 have had general knowledge of the basis on which they were
made. I did not make such statement as the question assumes.
Int 49. Did you have anything to do in establishing the basis
upon which the earnings of the road were divided between the A
and B division, if so, what ?
Ans. I was present at several interviews where the subject was
discussed between our officials and holders of the bonds of Novem¬
ber 1st, 1871, and the basis adopted was, if I recollect right, agreed
upon by our treasurer and the bond holders.
Int 41. What bond holders; give their names?
Ans. William H. Harding; he was contractor. Can't specify
any others by name, as he is most prominent in my memory. Our
directors were consulted.
66
Int 42. What is the actual mileage of the A division, running
from Portland to Bartlett ?
Ans. About sixty-three (63) miles.
Int 43. What is the actual mileage between Bartlett and Fa-
byans ?
Ans. It is between twenty-six (26) and twenty-seven (27) miles.
Int 44. Why then do you make the division at North Conway ?
Ans. Mr. Dana will answer that question. I have used that di¬
vision when I have had occasion to do so, because it was in accord¬
ance with Mr. Dana's course.
Int 45. Is that all the answer you have to make ?
Ans. Yes.
Int 46. What is the distance from Fabyans to Boston by way of
Eastern railroad from North Conway ?
Ans. One hundred and sixty-nine (169) miles.
Int 47. What is the distance from Fabyans to Boston by way
of Portland ?
Ans. By the Eastern railroad from Portland one hundred and
ninety-nine (199) miles, and by way of the Boston and Maine two
hundred and six and a half (206 1-2) miles. These distances are
in accordance with the published time-tables of the different roads
mentioned. For Boston business our road connects at Portland
with both the Eastern and Boston and Maine, and at North Conwav
7 «/
with the Eastern also.
Int 48. What is the fare from Fabyans to Boston on these dif¬
ferent lines ?
Ans. The fare is six ($6) dollars by either of the three routes.
Int 49. By the North Conway route how much does your road
get in the division ?
Ans. On the straight Boston and Fabyan business the Portland
and Ogdensburg railroad receives two dollars and seventy-five
($2.75) cents, and the Eastern railroad receives three dollars and
twenty-five ($3.25) cents.
Int 50. How is the two dollars and seventy-five ($2.75) cents
disposed of ?
Ans. It is all credited to the B division.
Int 51. What portion of the fare to Boston, by way of Port¬
land, does your road receive ?
Ans. By way of the Eastern railroad the Portland and Ogdens-
67
burg receives four dollars and fifty ($4.50) cents. By the Boston
and Maine the Ogdensburg receives four ($4) dollars.
Int 52. IIow is that disposed of?
Ans. It is disposed between the A and B divisions on the basis
of two-thirds (2-3) to A division, and one-third (1-3) to B division ?
Int 53. State in figures how much B division realizes on each
ticket by either route ?
Ans. On North Conway route two dollars and seventy-five
($2.75) cents, and on the route by Portland and the Eastern rail¬
road one dollar and fifty ($1.50) cents. By Portland and the Bos¬
ton and Maine railroad one dollar and thirty-three ($1.33) cents.
Int 54. IIow much per mile does that give B division on each
route ?
Ans. By the North Conway route nine and seventeen one hun¬
dredths (9 17-100) cents per mile. On the Portland and Eastern
railroad route five (5) cents per mile, and on the Portland and Bos¬
ton and Maine route four and forty-three one hundredths (4 43-100)
cents per mile.
Int 55. Why is B division entitled to nine (9) cents per mile on
its through business to Boston by North Conway, when its local
rate is only about (6) cents. Please state your reasohs fully ?
Ans. The Eastern railroad concedes to the Portland and Ogdens¬
burg railroad seventy-five cents on each through ticket between
Boston and Fabyans, in consideration of special trains run by the
Portland and Ogdensburg railroad, in connection with their trains
to and from North Conway ; this seventy-five (75) cents is deduct¬
ed from their local rates and added to ours. The whole amount is
credited to B division because the travel is entirely upon that di¬
vision. I mean to say in consideration of our hauling the trains
of the Eastern railroad from North Conway to Fabyans, and return
to North Conway.
Int 56. You mean by Eastern trains, that you haul their cars ?
Ans Yes.
Int 57. Do you haul the cars of the Boston and Maine road ?
Ans. We haul one parlor car of the Boston and Maine railroad
from Portland to Fabyans, and return, on our regular Portland
trains.
Int 58. Do you pay the Eastern railroad car service on each
car for what you say makes up the "Eastern train" the same as
68
you pay other roads car service when their cars are in use on their
road ?
Ans. No sir.
Int 59. Do you pay the Boston and Maine car service in like
case ?
Ans. No.
Int 60. Is it customary to allow car service to other roads
when their cars are in use on your road ?
Ans. It is.
Int 61. On which of these routes do you draw drawing room
cars ?
Ans. On the North Conway route, on two (2) trains each way,
on the Portland and Boston and Maine route on one train each
way, during the summer season.
Int 62. What proportion of your Boston business goes by way
of North Conway and what by way of Portland ?
Ans. The larger part of our business to and from Boston to the
mountains goes by the way of North Conway. I should say the
destination of our through travel is not always clear from our re¬
ports of the business from other lines. It will be impossible to
answer the question without a perfect check of our whole business.
We have never kept our accounts with such detail as would en¬
able me to answer the question definitely. A large amount of our
business consists of round trip, excursion and tourist tickets, the
starting point, route or destination of which are not reported.
Int 63. What is the basis of dividing between the A and B di¬
visions for business coming west of Lunenburg and going to points
east of North Conway, and vice versa ?
Ans. B division is allowed fifty (50) miles, Lunenburg to North
Conway, and A division its mileage as per "Exhibit A."
Int 64. What is the actual mileage between Lunenburg and
North Conway ?
Ans. By way of the Boston, Concord and Montreal and Scotts
mills the distance is fifty-four and seventy-eight one hundredths
(54 78-100) miles.
Int 65. What is this fifty-four and seventy-eight one hundredths
[54 78-100] miles composed of?
Ans. From North Conway to Fabyans thirty-one [31] miles.
From Fabyans to Scotts mills twenty-one and twenty-eight one
69
miles. Scotts mills to Lunenburg- two and
©
es.
hundredths [21 28-100"
five tenths [2 5-10] mil
Int 66. Why then do you put that distance in at fifty [50]
miles ?
Ans. The distance by location from Portland to Lunenburg is
recorded as one hundred and ten [110] miles, location of Port¬
land and Ogdensburg road, and the larger part of our earnings
from through traffic from Vermont is based on that mileage.
Int 67. For purposes of business for the present the P. & O.
road is located on the B. C. & M. road from Fabyans to Scotts mills,
is it not ?
Ans. It is.
Int 68. How much do you pay the B. C. & M. road for the use
of their road between Fabyans and Scotts mills for your trains ?
Ans. Five hundred dollars a month.
Int 69. What rights does this six thousand dollars a year give
you over the B. C. & M. road between Fabyans and Scotts mills ?
Ans. In consideration of that sum the Boston, Concord and
Montreal railroad agree to haul the trains of the Portland & Og-
o o
densburg railroad, as they may desire at reasonable times, between
Fabyans and Lunenburg.
Int 70. Is this sum charged against the B division ?
Ans. It is.
Int 71. Is it not all mountain road, so called, between Lunen¬
burg and North Conway, that is to say abounding in heavy grades ?
Ans. I don't know between Fabyans and Lunenburg about the
grades.
Int 72. What good reason is there why the B division should lose
over four [4] miles of this mileage, where there is actual haulage of
passengers and freight, in dividing with the A division and with
other roads ?
Ans. I can't give any reason.
Int 73. Are not the earnings of the freight of your road divi¬
ded between the A and B divisions on the same basis as the pas¬
senger business ?
Ans. They are.
Int 74. What railroad experience have you had beyond your
service on this road ?
Ans. None.
70
Int 75. Where railroad companies operate lines composed of
several divisions, do you know what their methods of arriving at
the net income of the divisions are ?
Ans. I do not.
Int 76. If you owned the road between North Conway and Lu¬
nenburg, and the A division was an independent road, would you
be willing to exchange traffic with the A division upon the basis
that you now divide ?
[Question objected to as irrelevant.]
Ans. Yes, under the same circumstances.
Int 77. What do you mean by "the same circumstances" ?
Ans. I mean the limitations under which it has been doing bus¬
iness up to this time.
Int 78. What do you mean by "the limitations" ?
Ans. I mean that with the exception of the traffic between the
mountains and points east thereof, that B division is not, and so
far as I can see cannot, be put in position to dictate in regard to
traffic independent of the A division.
Int 79. Why ?
Ans. Because a large part of the business of the Portland and
Ogdensburg railroad is through traffic to and from points east of
North Conway, passing over both divisions, and if A division was
disposed to refuse that traffic, B division, as matters are now man¬
aged, would have no traffic worth estimating, except its mountain
business which is confined to the summer months. I mean by "as
•/
matters are now managed" the present direction of railroad traffic
to and from the seaboard.
Int 80. You seem to forget that the B division connects at
North Conway with the Eastern road, as well as the A division,
and that it could negotiate its traffic with either road if all three
were independent. In that view what is your answer ?
Ans. In regard to traffic destined to Boston it amounts to but
very little at this time. In regard to traffic destined to points on
the A division, I should not expect the Eastern railroad to haul
that traffic one hundred and thirteen [113] miles as they would
have to to deliver it at Portland, for any less sum than the A di¬
vision would charge to haul it sixty [60] miles.
Int 81. If B division were independent do you think the A di¬
vision would refuse any traffic offered to it by B division for Port¬
land or points on its road ?
71
Ans. Yes, if their interest was to do so.
Int 82. If, as you state, a large part of the business of your
road is through business to and from the B division, do you think
the A division would refuse to receive it, or return it to the B di¬
vision on a fair and equitable basis ?
Ans. I don't think they would.
Int 83. Was Mr. W. B. Hatch here last spring seeking informa¬
tion in regard to these matters, and did you show him such books
and papers and give him such information as he requested ?
Ans. Yes.
Int 84. Referring to the annual report of your road dated Jan¬
uary 17, 1882, page 9, can you subdivide the summary of local and
foreign passengers, and local and foreign freights, stating how much
belongs to A division and how much to B1
[Question objected to by defendant's counsel as immaterial.]
Ans. I cannot without going over the entire year's business, as
reported on page 9.
Int 85. Will you furnish such a statement for use in connection
with your testimony ?
[Question objected to as calling for services from the witness re¬
quiring so much time to perform that it would be impossible for
him to comply, and as the books of the company are the best evi¬
dence in the premises.]
Ans. It will be impossible for me to do so.
Int 86. Why impossible ?
Ans. Because as I have understood the question such an exhibit
could not be made in a reasonable time to be attached to my depo¬
sition.
Int 87. What do you mean by a "reasonable time" ?
Ans. I have supposed that my testimony is for immediate use,
and that that is not a reasonable time for me to perform such ser¬
vices.
Int 88. How many days, hours or minutes, will it take to fur¬
nish it ?
[Question objected to as immaterial.]
Ans. I don't know.
Int 89. Have separate and distinct accounts of the earnings and
disbursements of the A and B divisions been kept ?
Ans. Not in my department.
72
Int 90. Have they been kept anywhere ?
Ans. They have been kept in the treasurer's office.
Int 91. Will the books in your department show the number of
passengers carried, and the number of tons of freight carried on
the B division ?
Ans. Not separate from the entire traffic of the road.
Int 92. How then can any other department of your road tell
what belongs to B division ?
(Question objected to as immaterial.)
Ans. Our books and accounts will show the distance and points
over and between which traffic has passed, and the income received
therefrom, which can be subdivided in accordance with the facts.
Int 93. Then you mean to say, that as the head of the passen¬
ger and freight traffic, your books will not show the tonnage of
freight or number of passengers going over B division ?
(Question objected to because it assumes to tell the witness that
he has made statements which he has not made in this deposition.)
Ans. I don't mean to say any such thing.
Int 94. Please answer question ninety-one (91) again?
(Question objected to because it has been fully answered before.)
Ans. I have answered that question.
Int 95. Have you not stated that the books of your department
would not show the number of passengers carried and the tonnage
of freight on the B division ?
(Solicitor for orator insists that the defendant's solicitor shall not
frame his objections in such a way as to suggest an answer to the
witness.)
(Question objected to because this deposition is the best evidence
of what the witness had stated, and because the question is imma¬
terial.)
Ans. No sir.
Int 96. Have you stated that no separate account was kept of
these matters on B division ?
(Same objection as before.)
Ans. No.
Int 97. Have such separate accounts been kept in your depart¬
ment, and if not in your department, in whose department,?
Ans. I have already answered that question. The separate ac¬
counts have been kept in the treasurer's department. They have
not been kept in my department.
73
Int 98. In the earnings over your line on passenger business
going from Boston to Fabyans by Portland, each division receives
the same rate per mile does it not ?
Ans. Yes.
Int 99. And that rate is above the local rate on the A division ?
Ans. Yes.
Int 100. And is above the through rate from Fabyans to Port¬
land ?
Ans. Yes.
Int 101. Please give the figures, showing how much, in each
case ?
Ans. On the business Boston and Fabyans via the Boston and
Maine railroad and Portland we receive about four and four-tenths
(4 4-10) cents per mile. On that via the Eastern railroad and
Portland about four and nine-tenths (4 9-10) cents per mile. Our
local through rate Portland to Fabyans is about three and eight-
tenths (3 8-10) cents per mile. In dollars and cents we receive in
the first case four ($4) dollars. In the second four dollars and fifty
($4.50) cents. And third three dollars and fifty ($3.50) cents.
Int 102. How much of these various amounts go to A, and how
much to B divisions ?
Ans. Of the four dollars A division receives two dollars and
sixty-seven ($2.67) cents, B division one dollar and thirty-three
($1.33) cents. Of the four dollars and fifty ($4.50) cents A divis¬
ion receives three (3) dollars, and B division one dollar and fifty
($1.50) cents. Of the three dollars and fifty ($3.50) cents A di¬
vision receives two dollars and thirty-three ($2.33) cents, and B
division one dollar and seventeen ($1.17) cents.
Int 103. In this apportionment of earnings between the A and
B divisions, does not A division get much more than its local rates,
and B division much less than its local rates ?
(Question objected to because it calls for an expression of opin¬
ion as to comparative amounts, which is not for the witness to de¬
cide.)
Ans. Yes.
Int 104. What was your business before you entered the em¬
ployment of this road ?
Ans. I was an insurance agent.
74
Cross Examination by T. HHaskell, Esq., solicitor for respondent.
Cross-Int 1. What is the length in miles of division A, true
mileage I mean ?
Ans. It is about sixty-three (63) miles.
Cross-Int 2. What is the length in miles of B division ?
Ans. About twenty-seven (27) miles.
Cross-Int 3. What is the length in miles from the upper end of
A division to Lunenburg ?
Ans. About fifty-one (51) miles.
Cross-Int 4. Upon dividing the traffic between A and B divis¬
ions, how many miles are accounted to A division, and how many
to B ?
Ans. To A division sixty [60] miles, to B division thirty [30]
miles at Fabyans, fifty [50] miles at Lunenburg.
Cross-Int 5. In dividing the business between Fabyans and
Portland what is the ratio of division ?
Ans. It is divided on the basis of two-thirds (2-3) to A division,
and one-third to B division.
Cross-Int 6. Dividing business between Lunenburg and Portland
what is the basis of division ?
Ans. To A division six-elevenths (6-11) and to B division five-
elevenths (5-11). That is, B division receives the entire five
elevenths (5-11).
Cross-Int 7. Dividing business between Lunenburg and Boston
what is the ratio of division for B division ?
Ans. On business going via North Conway B division has credit
for the entire earnings. On business going via Portland, B division
receives five-elevenths (5-11) of the earnings, and A six-elevenths
(6-11.)
Cross-Int 8. In each case does B division receive credit for more
than the actual mileage would entitle it?
(Question objected to as leading.)
Ans. It does.
Cross-Int 9. In pro-rating with other roads that do business over
your line, how many miles are allowed you between Lunenburg
and Portand ?
Ans. One hundred and ten (110) miles, except what western
business we have had coming from points west of Swanton, on
which we have claimed one hundred and fourteen (114) miles.
75
Re-direct Examination by Gny C.Noble, solicitor for plaintiff.
Int 1. Is Conway Junction between North Conway and Bar tie tt
line ?
Ans. North Conway Junction is between North Conway and the
Bartlett line. It is not called Conway Junction but North Conway
Junction.
Int 2. Is North Conway Junction the termination of the East¬
ern road ?
Ans. It is.
Int 3. How far would B division have to build in order to make
an independent connection with the Eastern road ?
Ans. I don't know.
Int 4. About how far ?
Ans. The distance between North Conway Junction and Bart¬
lett line is, I believe, a little less than one mile.
Int 5. Why have you claimed one hundred and fourteen (114)
miles on business west of Swanton ?
Ans. It was a better division for the Portland and Ogdensburg
railroad, and nearer in accordance with actual distances as we have
understood them.
Having read my deposition I desire to make the following cor¬
rections. I desire to correct the answer to interrogatory 2nd, so
that it shall read as follows : "All business generally passing through
a general ticket office is transacted by myself or under my super¬
vision, and in addition I receive reports and state to the treasurer
the sources of income from freight traffic, and balances due other
lines."
Orator's solicitor objects to corrections in this form, claiming that
the only proper way is to ask that certain words be added to his
former answer, or certain words be expunged from his former
answer.
The answer to the 15th interrogatory is not in accordance with
the facts. My answer should have been " 'Exhibit A' shows passen¬
ger fares to be collected by conductors on trains, and distances used
in the use of mileage tickets, tickets purchased at ticket offices and
rates used by connections lines are fifteen cents less than the fares
shown in 'Exhibit A' ".
Same objection as above.
76
My answer to interrogatory 22d should read "three and sixty-six
hundredths (3 66-100) cents per mile." Rate named in answer ap¬
plies to Portland and Fabyans and not North Conway.
Same objection.
The answer to 29th Int. should be " 'Exhibit A' has been in op¬
eration since July. 1876."
I wish to change my answer to the 72nd Int. so that it will read
"the earnings of B division are based as before stated on its loca¬
ted mileage. If to realize such or any earnings it is obliged to di¬
verge from its established route. The extent of such divergence
is simply an additional source of expanse or trouble to B division,
and should not effect A division.
Objected to for same reason.
My answer to 78th interrogatory should be "I mean that with¬
out the route to and from Portland furnished by A division, the B
division could not in my opinion have earned the income we have
credited to its account."
Same objection.
Re-direct continued by Guy C. Noble.
Int 6. How long between the time of your examination in chief
in this deposition and the corrections you have made to-day ?
Ans. I read my deposition Saturday afternoon, August 11th, and
was ready to correct it same afternoon, but was not called upon to
do so until about four o'clock of the Monday afternoon following.
Int 7. Who called upon you to do so ?
Ans. I don't know. Mr. Dana brought me word that I was
wanted for that purpose.
Int 8. Have you consulted Mr. Haskell, defendant's attorney,
about the corrections, and have you had the deposition home with
you over night, and examined it there ?
Ans. No, to both questions.
Int 9. Did the through business over the B division in 1880 and
1881, decrease from what it was in 1878 and 1879?
Question objected to as new matter.
Ans. I can't answer that question from memory. Mr. Dana's
books will show.
CHAS. H. FOYE.
77
Deposition of Charles II. Foye reopened by consent of counsel.
Int 10. What foreign roads allow the P. & 0. road a basis of
one hundred and fourteen (114) miles mileage in the settlement of
their joint business ?
Ans. Roads west of Swanton, and Southeastern railroad, and
lines connecting with them at Montreal.
Int 11. Name the roads that do not allow you either an arbi¬
trary rate or this one hundred and fo.urteen (114) miles on such
business ?
Ans. The St. Johnsbury and Lake Champlain railroad, for its
own business, and for some business from connecting lines, settled
in its accounts with us.
Int 12. What do you mean by the words "some business from
connecting lines", state fully ?
Ans. I mean freight and passenger business.
Int 13. Of what connecting lines?
Ans. Lines connecting with St Johnsbury and Lake Champlain
railroad, who have made their settlements through them, the St.
Johnsbury and Lake Champlain road.
Int 14. Now name them ?
Ans. Passumpsic railroad, Burlington and Lamoille railroad.
There have also been a considerable amount of business from the
Ogdensburg and Lake Champlain railroad, from the Delaware and
Hudson Canal Company's railroad, upon which the St. Johnsbury
and Lake Champlain railroad have confined our earnings to the
basis of one hundred and ten [110] miles. The St. Johnsbury and
Lake Champlain railroad having been the only road with which we
have made settlements for freight business passing Lunenburg,
have insisted that the mileage as adopted when we commenced
joint business arrangement with their predecessors, the Vermont
Division of the Portland and Ogdensburg line, should not be
changed, and we have accepted their accounts which have included
all business passing Lunenburg whether Rom the roads named or
any roads west of them.
Int 15. Have you a written agreement with the St. Johnsbury
and Lake Champlain railroad in regard to this business ?
Ans. Not that I know of.
Int 16. Does it all rest in a verbal arrangement ?
78
Ans. Yes.
Int 17. Between whom ?
Ans. The managers of the roads.
Int 18. Did you personally participate in making the arrange¬
ment ?
Ans. Yes.
Int 19. Does the St. Johnsbury and Lake Champlain road allow
your road one hundred and fourteen (114) miles on any portion of
the business reported by them ?
Ans. As before stated, they allow us one hundred and fourteen
[114] miles on business from Ogdensburg and west of there.
Int 20. Why do you yield to the demand of the St. Johnsbury
and Lake Champlain road that "confines" you to one hundred and
ten [110] instead of one hundred and fourteen [114] miles ?
Ans. I am so directed.
Cross Examination btj T. H. Haskell, Esq., counsel for defendant.
Cross-lnt 1. Prior to September 30th, 1881, was this same sys¬
tem of pro-rating with other roads maintained upon the basis you
have above stated ?
Ans. Yes.
Cross-lnt 2. Prior to that date what proportion of the business
prorated by your road with other roads was upon the basis of one
hundred and fourteen [114] miles, and what upon the basis of one
hundred and ten [110] miles, as near as you can state ?
Ans. To the best of my recollection a very small portion. A
very small part of our business was pro-rated upon a basis of one
hundred and fourteen [114] miles.
Cross-lnt 3. How has it been since that day ?
Ans. The proportion of that based on one hundred and fourteen
[114] miles has been small as compared with the other.
Cross-lnt 4. From what quarter does the bulk of the joint bus¬
iness which your road does with other roads come?
Ans. We receive the largest tonnage from west of Swanton
As to passengers passing Lunenburg, the reports of the Passumpsic
railroad and Southeastern railroad are in excess of others, but this
is true only of 1882, previous to which year the bulk of our pas¬
senger business passing Lunenburg, was in a very large measure,
from the line of the St. Johnsbury and Lake Champlain railroad,
and since that year the business reported by the St. Johnsbury and
79
Lake Champlain railroad up to the present time, is very much lar¬
ger than that reported by the Passumpsic and Southeastern.
CHAS. H. FOYE.
I, Jonas Hamilton, of Portland, in the County of Cumber¬
land and State of Maine, of lawful age, on oath depose and testify
in answer to interrogatories propounded by Guy C. Noble, counsel
for plaintiff.
Int 1. State your name, age, residence, and occupation ?
Ans. Jonas Hamilton; fifty-six [56] in November; Portland ;
superintendent P. & 0. railroad.
Int 2. How long have you been in the employ of the P. & 0.
road, and in what capacity ?
Ans. I have been in the employ of the P. & 0. railroad since
June, 1870. I think my appointment as superintendent was not
made until 1871.
Int 3. What are your duties as superintendent ?
Ans. I have general charge of operating the road.
Int 4. Have you immediate charge of repairs of the rolling
stock ?
Ans. I have not immediate charge. We have a master mechan¬
ic—Geo. II. Poor, who has charge of the engines. Likewise a man
by the name of Brewer who has charge of the cars—W. G. Brewer.
Int 5. You have general charge, I suppose, of these ?
Ans. Yes.
Int 6. Who makes return of the repairs, the expenses, and to
whom ?
Ans. The stock for repairs is charged from the invoices and
paid by the treasurer. The wages—each man's time—is kept by a
clerk, and that is turned in also. There is no individual account
kept for engines or cars; they are simply charged to engines, pas¬
senger cars, freight cars, track and track repairs, or any other inci¬
dental repairs.
Int 7. Is any distinct or separate account kept of any of these
matters of rolling stock, as between the A and B divisions of the
road ?
Ans. Not in my office.
80
Int 8. Is there any such separate or distinct account kept any
where, to your knowledge ?
Ans. I don't know that there is, except in the treasurer's office.
Int 9. Is it kept there ?
Ans. I couldn't swear that it was. I know very little of the
treasurer's accounts.
Int 10. In order for the treasurer to keep such an account
would it not be necessary for him to get separate and detailed state¬
ments from your department ?
Ans. I think it would. He would have to get his information
from somewhere.
Int 11. In your supervision and care of the rolling stock, you
treated all as an entirety, and not a part as belonging to one divis¬
ion and a part to the other.?
Ans. I do.
Int 12. The engine men and train men and locomotives all run
between Portland and Fabyans and are confined within that limit ?
Ans. Yes, with the exception of one baggage man, who runs
through to Montreal this summer.
Int 13. Has this been so since 1875 ?
Ans. The men have all run between Portland and Fabyans
since the road was started.
Int 14. In making returns to the treasurer of locomotive mile¬
age what number of miles do you give A division and what num¬
ber to B division on each through trip between Portland and Fa¬
byans ?
Ans. The divisions are made sixty [60] miles to A division, and
thirty-one [31] miles to B division, and the engines are given their
actual mileage on whichever division they are run.
Int 15. Where did you get this basis of division?
Ans. I got the distances from the civil engineer. They were
given as we open each portion of the road.
Int 16. In your return to the treasurer of the number of miles
run by your freight and passenger cars how many miles do you
give between Portland and Fabyans. How many miles to A divis¬
ion, and how many to B ?
Ans. If they run through we give A division sixty [60] and B
thirty-one [31] miles. If they are left at intervening stations they
are given actual miles run.
81
Int 17. In your return of the service of such cars running be¬
tween Lunenburg and Portland, what mileage do you give to each
division ?
Ans. Sixty to A, and fifty-four to B.
Int 18. What is the fifty-four [54] miles composed of ?
Ans. The North Conway to Fabyans thirty-one [31] miles.
Fabyans to Scotts Mills twenty and one-half [20 1-2] miles. Scotts
Mills to Lunenburg two and one-half (2 1-2) miles. I don't know
the distances on the B. C. & M. road, except as we get them from
their time tables.
Int 19. Have several miles of the track of B division been re-
laid steel rails since 1876 ?
Ans. Yes.
Int 20. What was done with the iron rails that were taken up ?
Ans. Those that were worn out were sold, and those that were
fit to relay were put into the track into different places.
Int 21. Was any account kept of how many were put into A
division ?
Ans. I don't know, because I kept none of the accounts of
track repairs.
Cross Examination by T\ II. Haskell, solicitor for respondent.
Cross-Int 1. Waived.
JONAS HAMILTON.
Interrogatories propounded by the Orator for the examination of
A. W. Wilde.
I, Asa W. Wilde, on oath depose and testify in answer to the
following interrogatories :
Int 1. State your name, age, residence and occupation ?
Ans. Asa W. Wilde, sixty-one, Skowhegan, Maine, Civil Engi¬
neer.
Int 2. State generally what experience you have had in re¬
spect to railroad management, or railroading and railroad property ?
Ans. I have been a railroad constructing engineer for about
forty years, and for the last twenty-two years Railroad Commis¬
sioner of the State of Maine.
82
Int 3. State whether you made an examination or appraisal, as
an expert, of the railway and rolling stock of the Portland and Og-
densburg R. R. in the fall or winter of 1876 ?
Ans. I made an examination of the railway, but I cannot swear
that I made an examination of the rolling stock.
Int 4. State whether you made the examination or appraisal at
the request of the City of Portland, and whether or not you made
a report of such examination and appraisal ?
Ans. I made the examination or appraisal at the request of the
chairman of the commission, and I made a report of the result of
my examination.
Int 5. State whether or not the exhibit marked "A—H. R. Vir¬
gin, Examiner/' is a correct inventory and appraisal of the value
of engines and cars made by you, and submitted with your report
dated Dec. 23, 1876, to M. M. Butler, Chairman of the Commission
appointed by the City of Portland, to investigate the matters re¬
ferred to in said report ?
Ans. I think it is a correct inventory; according to my best
recollection I did not make an examination of all the rolling stock,
r but the amount and estimated value was furnished me by some of¬
ficer of the road, which I adopted and annexed to my report.
Int 6. State whether the figures set opposite the names of lo¬
comotives and the figures set opposite two cars under the head "A
Div." on the 1st page of said exhibit gives your estimate or opinion
of the value of those engines and cars at that time ?
Ans. I think it does, those are the figures given to me at that
time, as I have indicated in my answer to the 5th Interrogatory.
Int 7. State whether the inventory on the 2nd page of said ex¬
hibit headed "Rollins; Stock—Portland & O^densbur"; R. R." in
o o o
which is set forth the names of engines, and number of cars and
snow plows, with an amount set against each engine and the num¬
ber of cars, is a correct appraisal of their value ?
Ans. I believed it was at that time, and think so now.
Int 8. State whether the inventory headed "Rolling Stock—
First Mortgage" on 3rd page of said exhibit, and aggregating $34,-
950, was a correct appraisal of the value of each item as therein
set forth; and will you please annex said exhibit to this deposition ?
Ans. I believed at the time it was made that it was a correct
appraisal, and think so now. I will annex the exhibit.
83
Int 9. State what you understood to be the interest of the city
of Portland in said R. R. and property, which induced the said
Commissioners to employ you to make such examination and ap¬
praisal as hereinbefore set forth ?
Ans. The city was largely interested in the road, financially,
and desired to ascertain its true condition at that time.
ASA W. WILDE.
STIPULATION OF COUNSEL
It is hereby agreed that H. R. Virgin, a notary public in and for
the County of Cumberland, and State of Maine, shall act as exam¬
iner to take the deposition of Asa W. Wilde, at Portland in said
County, and that said deposition shall be used in the above entitled
cause, subject to objections as to admissibility of evidence. Certif¬
icate, caption and notice waived.
T. H. HASKELL, solicitor for defendants.
NOBLE & SMITH, for orators.
STATE OF MAINE.
cumberland, ss.
Pursuant to the foregoing agreement of counsel, on the eight¬
eenth day of December, A. D. 1883, and by adjournment on this
third day of January, A. D. 1884, personally appeared Asa W.
Wilde, who being sworn by me, according to law, to testify the
truth, the whole truth and nothing but the truth relating to the
cause or matter for which his deposition was to be taken, deposed
as above in answer to interrogatories propounded by Guy C. Noble,
solicitor for orator, which deposition was written by me, and after
the same had been read to the deponent, it was then subscribed by
him in my presence.
Witness my hand and seal the clay and year last above mentioned.
H. R. VIRGIN, Examiner and, Notary Public.
(seal) Fees, Witness as expert, including travel, 400 miles, $80.
Magistrate, $10.
84
"EXHIBIT A" H. R. Virgin, Examiner.
"A" Div.
Loco. Presumpscot §1,500
Saco 5,000
Sebago 5,000
2 Pass. Cars No. 1 & 2 4,000
40 Flat " No. 301—304, J orig. cost
20 Box " No. 1—20 | "
2 Conductors } " "
2 Hand Cars, &c. 4 " "
B.
4 Passgrs. @ 3,000
2 " 2,200
6 " 500
2 Smokg. 2,500
3 Obst. 1,400
3 Bge. 1,500
1 " 1,700
1 " & Smkg. 1,000
25 Box & Hay Cars @ J cost
20 Ice Cars 275
3 Snow PI. @ 1,000
1 Derrick Car 300
30 Platf. @ \ cost
OLLING STOCK, PORTLAND & OGDENSBURG R.
Engine Crawford $8,500
" Carrigain 8,000
" Ossipee 5,000
" Fryeburg 6,000
" Pequawkett 6,500
" Presumpscot 1,500
" Saco 5,000
" Sebago 5,000
4 Passenger Cars 12,000
2 " " 2,200
6 " " 3,000
2 Smoking " 5,000
3 Observation Cars 4,200
2 Baggage " 3,000
1 " " 1,700
1 " & Smoking Car 1,000
85
70 Box & Hay Cars,
20 Ice
70 Platform
1 Derrick
3 Snow Plows
3 Conductors'
u
«
a
u
390 each
27,300
275 "
5,500
325 "
22,750
300
1000 "
3,000
575 "
1,150
$137,600
Value of Hand Cars, Connecticut River to Bartlett Line
Bartlett South Line to Portland
ROLLING STOCK, 1st MORTGAGE.
a
u
Engine Presumpscot
Saco
Sebago
2 Conductors' Cars
20 Box & Hay " *
40 Platform "
2 Passenger " No. 1 & 2
$1,500
5,000
5,000
1,150
7,100
13,000
2,200
$34,950
$1,105
1,699
Defendants' objections to the Orator s Interrogatories to be pro-
pounded to A. W. Wilde.
Defendants object to the third interrogatory because it is incom¬
petent to prove the witness an expert in the action of the witness
inquired about by his own judgment.
Defendants object to the fourth interrogatory because it is im¬
material and incompetent evidence.
Defendants object to the fifth interrogatory for the same reason.
Defendants object to the sixth interrogatory because it is lead¬
ing and calls for irrelevant and incompetent testimony.
Defendants object to the seventh interrogatory for the same rea¬
sons last above given.
Defendants object to the eighth interrogatory because it is lead¬
ing and calls for immaterial and incompetent testimony and for
part only of a written document.
Defendants object to the ninth interrogatory because it calls for
immaterial testimonv-
%/
By T. H. Haskell, their Solicitor.
EXHIBIT "A"
Copy of Bond produced and which copy is submitted with the
answer made to Interrogatory No. 3, and which I have carefully
compared with the original to which there remained forty-nine
coupons attached such as the copy of one of them, within given,
and one coupon detached September 7th, 1883.
[seal.] TIMOTHY GRIFFITH,
Clerk U. 8. Circuit Court Southern Dist. of New York.
(COPY OF BOND.)
STATE OIF UVTAAHNTZE.
UNITED STATES OF AMERICA.
A P)P)P) FIRST MORTGAGE BOND A 000
1UUU PRINCIPAL AND INTEREST^-^^v PAYABLE IN GOLD. 1UUU
No. No.
THE PORTLAND & OGDENSBURGH RAILROAD COMPANY.
The Portland and Ogdensburgh Railroad Company promise to pay Samuel
E. Spring, Weston F. Milliken and Geo. F. Emery or bearer for value receive d
one thousand Dollars in United States Gold coin in the city of Boston, Mass.
on the first day of November in the year 1901, with interest thereon at the rate
of six per cent, per annum from the istday of November A. D. 1871, payable
in like gold on the first day of May and the first day of November in each year
in the City of Boston on the presentation and surrender of the respective cou¬
pons hereunto annexed. This bond is one of a series of Forty four hundred
bonds, Three thousand of which are for $1000 each, numbered respectively
from 1 to 3000 inclusive. Four hundred of which are for $500 each, numbered
respectively from 3001 to 3400 inclusive. And one thousand of which are for
$100 each, numbered respectively from 3401 to 4400 inclusive. Said bonds
amounting to the aggregate of $3,300,000 all bearing even date herewith, issued
in accordance with a vote of the Directors of said Company on the thirty first
day of October A. D. 1871, and secured by a mortgage of the same date, au¬
thorized by a vote of the stockholders, at a meeting held on the twenty third
day of October A. D. 1871, and by the laws of the State of Maine and New
Hampshire, dnly executed by said Company to Samuel E. Spring, Weston F.
Milliken aud Geo. F. Emery as Trustees upon the whole railroad of said Port¬
land and Ogdensburgh Railroad Company from its commencement in Portland,
Maine to its termination at the western boundary of the State of New Hamp¬
shire, with all the lands and tenements, rolling-stock, stations, fixtures and fran¬
chises thereof and appurtenances thereto belonging, now owned or held or that
may be hereafter acquired by said Company, also any and all rights which may
be acquired by lease or contract in any railroads forming part of the through
line from Portland to Ogdensburgh a portion only of said bonds amounting in
the aggregate to no more than $2,500,000 have been issued to provide for the
construction, completion and equipment of the whole of said Railroad the re¬
maining $800,000 are appropriated to and are to be used only for the liquidation
and removal of a prior incumbrance on that portion of said railroad extending
from Portland, Maine to Bartlett, New Hampshire. This bond shall not be¬
come valid and obligatory in the Company until the certificate endorsed hereon
is signed by the Trustees.
PORTLAND &
OGDENSBURGH *n witness thereof the said Portland & Ogdensburgh Railroad
RAILROAD CO. Company hath caused its cor porate seal to be hereunto affixed
and these presents to be signe i by its President & Treasurer this
Incorporated first day of November in the year of our Lord One Thousand
^ i -10,Eight Hundred and Seventy One.
±et>. 11, lob4. ^ A
H. N.JOSE, Treasurer. SAM. D. ANDERSON, President.
STATE OP NEW HAMPSHIRE. A true Copy
[COPY OF COUPON.]
PORTLAND & OGDENSBURG RAILROAD
COMPANY
COUPON OD No. 6 FOR
THIRTY O U DOLLARS.
Interest due Nov. 1st, 1901
in U. S. Gold Coin payable in the City of Boston on Bond No. 700.
H. N. JOSE, Treas.
This Bond may be Registered in the owners name in the Com¬
pany's Books in the City of Boston or at any other place which
the company may determine, such registry being noted in the
Bond by the Company's Transfer Agent after which no transfer
shall be valid unless made in the Company's books by the regis¬
tered owner or his attorney, and similarly noted in the Bond but
the same may be discharged from registry by being transferred to
bearer after which it shall be transferable by delivery but it may
be again registered as before.
O O
The Registry of the Bond as above shall not restrain the negoti¬
ation of the coupons by delivery merely but the coupons may be
surrendered and the Interest made payable only to the registered
owner of the Bond.
[copy of bond.]
No. 700.
UNITED STATES OF AMERICA.
States of
Maine & New Hampshire.
Six per Cent
FIRST MORTGAGE BOND
PORTLAND & OGDENSBURGH RAILROAD
COMPANY.
1000.
Principal and Interest Payable in U. S. Gold Coin
Principal due in 1901.
Interest payable May 1st & Nov. 1.
In the
CITY OF BOSTON
We hereby certify that the within Bond is one
of the series of Bonds secured by the Mortgage
described therein and delivered to us as Trustees
which Mortgage has been duly recorded in the
proper counties and offices in the States of Maine
and New Hampshire.
S. E. SPRING,
W. F. MILLIKEN,
GEO. F. EMERY,
Trustees.
86
DEPOSITION OF LOUIS FITZGERALD.
Int 1. State your age, residence, and occupation ?
Ans. Age, 45 ; residence, New York City ; occupation, Presi¬
dent of the Mercantile Trust Company.
Int 2. Is the Mercantile Trust Co. mentioned in your answer
the orator in the above entitled case ?
Ans. Yes.
Int 3. See Exhibit "A" T. G. Describe the bonds held by you
and for which you seek a foreclosure in the above named case ?
Question objected to because it assumes the existence and pos¬
session of bonds not proved, and the answer can not be the best
evidence in the premises, and would be incompetent to prove the
existence and the contents of written documents.
Ans. $80,000 First Mortgage Bonds Portland & Ogdensburg R.
R. as per copy herewith, purchased by the company in the regular
course of its business, par value.
Int 4. Where are such bonds, and who has owned them since
January 1st, 1881 ?
Same objection.
Ans. In the Company's safe. The Mercantile Trust Company.
Int 5. What interest coupons thereon have been paid ?
Ans. The coupons up to and including the one due May 1, 1876,
have been detached from the bonds and they have been paid. The
coupons maturing Nov. 1, 1876, were at that time sent by express
to Boston as before, payment demanded and refused.
Int 6. Under what laws, and when was the orator—the Mercan¬
tile Trust Company—created and organized, and will you furnish
and append to this deposition a copy of its charter duly certified ?
Question obiected to because it seeks for testimony proving what
is shown by record that is the best evidence in the premises.
Ans. Laws of the State of New York, Chap. 806, passed May
9,1868; Chap., 183, passed April 14, 1869; Chap. 121, passed
March 30, 1870; Chap. 845, passed June 27, 1873; Chap. 423,
passed May 26, 1880. The capital of the company is $2,000,000,
and its business is a depository of Trust funds. Copy of Charter
and Amendments herewith.
Int 7. How long has said company been doing business, and
where has been its principal place of business since its organiza¬
tion ?
87
Ans. Since the year 1868 ; No. 120 Broadway, New York City.
Cross Examination waived.
LOUIS FITZGERALD.
The deposition of Wm. B. Hatch taken on the part of the
orator. Interrogatories proposed by Guy C. Noble, Esq., of coun¬
sel for orator.
Int 1. State yonr name, age, residence, and occupation ?
Ans. William B. Hatch; St. Albans. Yt.; 33 years; railroad
accountant.
Int 2. How long, and where have you had experience as a rail¬
road accountant ?
Ans. Since 1869, eight months of which I was connected with
the South Eastern R. R. of Canada, the remainder of the time with
the Central Yt. R. R. Company. I was with the South Eastern R.
R. in the years 1879 and 1880.
Int 3. State in a general way what your duties have been as
such accountant?
Ans. Prior to 1876, I was employed in the General Passenger
Department, the principal part of which I had charge of the ac¬
counts and books of that department. From 1876 to Nov. 1879, I
was connected with the General Auditing Department of the Cen¬
tral Yt. R. R., being employed upon the general accounts of earn¬
ings and operating expenses, receipts and disbursements of that
road. From December 1st, 1879 to August 1st, 1880, I was chief
clerk and cashier of the South Eastern Road having entire charge
of the accounts of that road during that period, in all their details.
From August 1st, 1880 to the present time I have been the chief
clerk in the Mechanical Department of the Central Yt. R. R., hav¬
ing entire charge of the accounts of that department, in addition
to which duties I have had charge of various general accounts of
the road for special purposes, covering all the details of freight and
passenger business.
Int 4. How many miles under the Central Yermont manage¬
ment ?
Ans. Between five and six hundred at the present time. In
this is one hundred and twenty miles from Brattleboro to New
88
London, the accounts of which are kept at New London, and of
which I have not had charge.
Int 5. What, and how much acquaintance have you with the
system of accounts of other roads ?
Ans. I have made it a careful study for the last seven years,
and have been brought in contact with other roads connecting and
settling with the Central Vt. and the South Eastern during the re-
O O
spective times I have been with each to a considerable extent.
Int 6. Name some of the roads?
Ans. The Ogdensburg and Lake Champlain, the Northern R. R.,
the Concord R. R., the Boston and Lowell R. R., the Cheshire R.
R., the Connecticut River R. R., the Grand Trunk R. R., the Pas-
sumpsic R. R., and others.
Int 7. State whether you have examined the accounts and
books of the Portland and Ogdensburg R. R. Co. (the defendant in
this case) with whom, and when, and for what purpose?
Ans. I have, the latter part of April or first of May in the
present year, with John W. Dana, treasurer, and Mr. Foye, the gen¬
eral ticket agent, at Portland, for the purpose of verifying the
statement in the answer of the defendants, also statements in their
annual report, and an examination of the report of the expert,
Chase, mentioned in the defendants' answer, with the books and
accounts of said company to September 30, 1881, and also for the
purpose of ascertaining the method and basis of divisions of earn¬
ings and operating expenses between the UA" and "B" divisions,
so called, which the railroad company had adopted and used in
making of the statements before referred to. Besides the officers
mentioned, I was aided in the examination by Mr. Hamilton, the
superintendent, and by Mr. Anderson, the president, who gave me
such data as was contained in their respective departments, as
called for by me.
Int 8. What subjects did your examination include, and cover¬
ing what time ?
Ans. Commencing with the report of R. Stuart Chase, of re¬
ceipts and disbursements to December 1st, 1876, of the "B" divis¬
ion, embodying the following amounts.
Receipts to Dec. 1, 1876.
Bonds of November 1st, 1871, 1,581,600.00
Dalton loan, 51,041.88
1,632,641.88
89
Disbursements to
Construction,
Equipment,
Discount and Commissions,
Miscellaneous,
Coupons of bonds of Nov. 1, 1871,
Interest on Dalton loan,
Dec. 1, 1876.
1,287,951.33
203,298.20
103,383.22
12,770.66
146,231.59
1,447.35—1,755,082.35
Excess of disbursements over receipts, 122,440.47
And the remainder of his report appertaining to "A" division,
with exceptions of the division of earnings and operating expenses
which I assumed to be correct, and going on from that point down
to September 30, 1881, I carefully examined the books and ac¬
counts, also their annual reports, in reference to all of these sub¬
jects. In respect to the division of earnings and operation expen¬
ses of both divisions I examined from the time the UB" division, or
parts of it was opened, down to September 30, 1881.
I have carefully examined the method adopted in such division,
and have prepared statements of results based upon a different
theory from that adopted by the company.
Int 9. Please state what is comprised in 66A" and what in (ijB"
divisions, and what method the company have pursued in respect
to earnings of the divisions?
Ans. Division 66 A" under the mortgage, is from Portland to
Bartlett line, as I understand, and under the mortgage division UB"
is from Bartlett line to Fabyans, and from Scotts Mills to Lunen¬
burg, including the track of the Boston, Concord and Montreal R.
R. from Fabyans to Scotts Mills, over which they have a running
arrangement, making a total mileage of road, according to their
passenger tariff, of 114 miles, and I understand from Mr. Anderson
the civil engineer, that the distance from Portland to Bartlett line
is 61 433-1000 miles, and from Bartlett line to Fabyans is 27 596-
1000 miles, and the distance from Bartlett line to Lunenburg over
the line in use to be 54 miles.
In the division of passenger earnings between Portland and Fa¬
byans the company have for convenience sake called division
60 miles or two-thirds, and "Z?" division thirty miles or one-third,
and have divided the earnings between those points on that basis.
Int 10. State what division you have made of such earnings,
90
what method you have adopted in such division, and the result you
have arrived at ?
Ans. In establishing the local passenger fare from Portland to
Bartlett line the rate has been made about 3 6-10 cents per mile,
and from Bartlett line to Fabyans at about 6 5-10 cents per mile,
showing that for some good reason such as large cost or command-
o « ; o
ing position the company placed its local fare on that division at
almost three cents per mile more than on "A" division, and in my
judgment, the division of all passenger rates, also freight rates,
should be divided between "A' and UB'' divisions, so as to give
each divisions the same relative rate per mile in comparison with
the local rate as they would get from such local rates, that is to
say—if calling the actual distance of UA" division 62 miles at 3
6-10 cents per mile or $2.30; "i?" division, 29 miles, at about 6 5-
10 cents or $1.90, the percentage of those two local rates would
give UA" 54 3-10 per cent, and UB" 45 2-10 per cent, of the com¬
bined locals between Portland and Fabyans. The tariff fare from
Portland to Fabyans is $3.50. That has been divided 2-3 to 66A"'
and 1-3 to UB" or $2.33 to "A" and $1.17 to "2?".
On the basis 1 have adopted, that is, a percentage based upon
the local rates per mile of the two divisions I make the division of
the $3.50 between the uA" and UB" divisions as follows—"A" 54
8-10 per cent, or $1.92, and UB" 45 2-10 per cent, or $1.58. Ac¬
cording to their division "B" gets $1.17 of the $3.50, and by the
percentage based on local rates UBB would get $1.58, making an
increase of 41 cents, or an increase of 35 per cent, to "B" division.
I have prepared a statement showing the divisions of passenger
fares between and UBB as made by the company, and also on
the basis of percentage based on local rates which I have adopted
as my plan, covering the following points : Portland to Fabyans,
Portland to Lunenburg, also the P. & O. companies proportion of
the through rate between Montreal and Portland, also between
Boston and Fabyans by the Eastern R. R. to Portland, which I
here produce and annex to my deposition, the same being marked
Exhibit "A" "F. S. Streeter, August 29, 1883."
Int 11. What basis has the company adopted and what have
you adopted in the division of freights ?
Ans. The same basis of percentages respectively.
Int 12. In making up your statement of results, what percent-
91
age have you allowed the UB" division in addition to what the com¬
pany allowed it, and for what reason ?
Ans. From Exhibit A, annexed to my deposition, I have arrived
at not less than 25 per cent, of the amount already allowed B di¬
vision, as what would be a fair basis for such differences is methods
of division, but in order to cover all possible contingencies for the
purpose of my statements I have adopted 10 per cent, of the
amount already allowed "2?" by the company, as being a fair
amount to add to UB" for such difference in methods of division.
Int 13. On this basis is there any chance of it being unfair to
"A" division ?
Ans. As I made the amount but 10 per cent, instead of 25 per
cent, to avoid all possible chance of being unjust to uAl\ lam con¬
fident there is no chance for unfairness to "A" division.
Int 14. Have you prepared a statement showing results upon
the basis and methods of division used by the company, and also as
used by you, and will you produce it ?
Ans. I have, and hereby produce statements of such divisions
for the years ending September 30th, 1878, 1879, 1880 and 1881,
which is hereto annexed marked "Exhibit 4B' F. S. Streeter, Aug.
29, 1883", one page showing the result of the company's method
of division and the other page showing the result of mine.
During the years ending September 30, 1878 and 1879, the gross
earnings of the entire road on foreign freights was $50,000 and
$40,000 in round numbers, respectively. In dividing those amounts
the company allowed "2?" division 68 per cent, and 63 per cent.,
respectively.
In the years ending September 30, 1880 and 1881, the gross
earnings on foreign freights for the entire road was $42,000 and
$32,000 in round numbers respectively, and in dividing those earn¬
ings the company allowed "B" division but 47 per cent, and 42
per cent., respectively.
As "2?"s proportion for the years 1880 and 1881 were so much
smaller in comparison of A1 s proportion of the whole amount of
the gross amount for those years, I have adopted in my statement
the same percentage or 63 per cent, for the years 1880 and 1881,
that B received in 1879.
Int 15. Does the last Exhibit B show the division of expenses
for the same years ?
92
Ans. It does.
Int 16. Will you please state the methods adopted by yourself
in arriving at the division of the operating expenses ?
Ans. I have taken the same results of the division of operating
expenses as made by the company, with the exception of such ex¬
penses as are divided upon the basis of train mileage.
I have prepared an account of train mileage based upon the act¬
ual miles of road as stated to me at the time of my investigation
last April, which materially changes the mileage in favor of UB"
division.
I have prepared a statement of the miles run on 66A" and "B"
divisions upon data furnished me by Mr. Dana, the treasurer of the
company, by passenger engines, freight engines, passenger cars,
and freight cars, based upon 60 miles of road to "A" and 31 miles
to "B", and on the opposite page the same mileage of engines and
cars divided upon the basis of 62 miles of road to "AL" and 29
miles to "B", which statement is hereto annexed marked "Exhibit
'C' F. S. Streeter, August 29th, 1883."
I have also credited "2?" in the year 1880, an estimated amount
of $5000, for old rails removed from "B" division and no credit
given, also an estimated amount of $10,000 for the year 1881 for
the same purpose, all of which appears on Exhibit "2?".
Int 17. Are there any net earnings which belong to the 66B"
division for which it has not had credit prior to September 30,1877.
If yes, have you prepared a statement of the same, and will you
produce and explain it?
Ans. I have prepared a statement of the division of earnings
and expenses between the "A" and "2?" division which I annex to
this deposition marked "Exhibit D, F. S. Streeter, August 29,1883"
in which I make the net earnings of "2?" division prior to Septem¬
ber 30th, 1881, $101,862.57. These results are based upon the
same general principles of division used by myself in the division
subsequent to September 30th, 1877.
The years 1874 and 1875 are estimated. Such estimates are based
upon the percentages of 1876 and 1877. The earnings for the
year 1876 is divided upon the miles run upon the "A" and "2>"
divisions, of freight and passenger trains, including the mileage on
the Boston, Concord and Montreal R. R. which gives "2>" a per¬
centage of 31 per cent, of earnings.
93
The expenses are divided on the train mileage substantially.
The year 1878, earnings are based upon the per cent allowed UB''
in 1878. The expenses are based on the train mileage as shown in
this Exhibit D.
Int 18. Where did you get the data and material for this last
statement ?
Ans. From the books, accounts and annual reports of the com¬
pany.
Int 19. Have you prepared a statement of the results from 1870
to 1881, inclusive, showing earnings, operating expenses and net
earnings of the UA" and UB" divisions, both, as claimed by the or¬
ator and as claimed by the company, and if so, will you produce it ?
Ans. I have, and produce it, and annex the same to this depo¬
sition marked "Exhibit E, F. S. Streeter, August 29, 1883", which
statement shows that the company allowed "B" division as net
earnings to September 30th, 1881, $86,318.68, commencing Sep¬
tember 30, 1877. By the division as claimed by the orators, the
net earnings commence November 30th, 1873, extending to Sep¬
tember 30, 1881, amounting to $263,398.97.
Int 20. State what, in your opinion, "B" is justly entitled to
be credited over and above the credit that has been given it by the
company ?
Ans. $177,060.29 as shown by Exhibit E.
Int 21. What investigation have you made in regard to the roll¬
ing stock, its ownership and use, as between the "A" and UB" di¬
visions, give the results ?
Ans. According to Mr. Chase's report the amount of equipment
charged to "A" division was $81,197.94, consisting of 3 locomo¬
tives, 2 passenger cars, 20 freight box and hay cars, 40 freight
platform cars, and 2 freight vans, purchased prior to November 1st,
1871, since which time all purchase of equipment has been consid¬
ered and treated as belonging to "B" division, and September 30th,
1881, the amount of equipment assigned to i6B" division was 6
locomotives, 16 passenger and baggage cars, 90 box and hay cars,
112 platform cars and 2 vans, costing as per amount charged out
$253,740.21, which amount added to the $81,197.94 aggregates
$334,938.15, the amount as shown to be the cost of the equipment
of the road as shown in the general balance sheet of the company
to September 30th, 1881, as shown in their annual report under
date of January 17th, 1882.
94
The ordinary repairs of the entire rolling stock have been appor¬
tioned between UA" and UB" by the company on the basis of train
mileage. Nothing has been allowed UB" division for the use, or in
other words, depreciation and interest on the money invested in a
large amount of equipment furnished by UB" division in excess of
«A".
Int 22. Have you prepared a statement showing the cost per
mile run of the engines and cars, based on the average deprecia¬
tion and interest of the same, as shown by the books and accounts
of the company ?
Ans. I have, and here produce it and annex it to this deposi¬
tion marked "Exhibit 'F' F. S. Streeter, August 29, 1883". This
statement shows that the average cost per mile run to cover depre¬
ciation and interest as follows : Locomotives about 6 cents per mile
run. Passenger and baggage cars 4 cents per mile run. Freight
cars about 5 cents per mile run. The statement shows all the fig¬
ures by which the results were reached.
In arriving at this result, that is, the cost per mile run, 1 took
the average cost of the highest priced locomotives, less the average
value of the same December 1st, 1876, taking the average depre¬
ciation for one year, adding 6 per cent interest on the average
cost, which made the average depreciation and interest for one year
$1,618.12. Dividing that by the average number of miles run by
one engine for one year, arriving at the rate of about 6 cents per
mile as the average rate of depreciation and interest, which does
not include the cost of repairs.
In like manner I arrived at the cost per mile run, for the depre¬
ciation and interest of freight and passenger cars as is shown in
Exhibit "F".
The cost per mile run for ordinary repairs which has been divid¬
ed between divisions "A" and "B1 according to miles run, will ap¬
pear on my statement of division of expenses marked Exhibit "B"
and "D".
Int 23. Have you prepared a statement from an examination of
the books and accounts of the company, showing the amount due
"B" division for use of equipment between 1871 and September
30th, 1881, inclusive ?
Ans. I have, and here produce it to be annexed to my deposi¬
tion marked "Exhibit 'G', F. S. Streeter, August 29th, 1883", shows
95
ing that on the basis of 6 cents per mile for locomotives, 4 cents
per mile for passenger cars, and 5 cents per mile for freight cars,
that there is a balance due "i?" division of $213,595.75 for excess
of use of UB" division rolling stock on "A" division, less amount
due "A" division for UA" divisions equipment used on UB" divis¬
ion, all of which is shown in the Exhibit, each year Jan'y 1st, 1872
to September 30th, 1881.
Int 24. State whether you have prepared a statement from the
books and accounts of the company, showing the number of loco¬
motives, the passsenger, baggage and freight cars on hand each
year from December 31, 1871 to September 30, 1881 ?
Ans. I have, and here produce it to be annexed to this deposi¬
tion marked "Exhibit H, F. S. Streeter, August 29, 1883 ?
Int 25. Do the books or accounts of the company show any
credit to "Z?" for the use of its rolling stock ?
Ans. They do not.
Int 26. Did you hear the testimony given by Mr. Dana in his
deposition filed in this case, and particularly his answer to Inter¬
rogatories 93 and 95, and if so, state whether the same is correct
and what facts are as shown by the books of the company ?
(Question objected to by T. H. Haskell, Esq., of counsel for de¬
fendant, as incompetent and immaterial.)
Ans. I did, and in accordance with Mr. Chase's report the state¬
ment of monies disbursed from December 1st, 1876, to Sept. 30,
1881, the amount paid on account equipment to December 1st,
1876, and a statement in the annual reports, the amount paid on
account of equipment should be $30,339.55 instead of $57,903.62.
I should have said the amount expended on equipment was $40,-
249.97 instead of $57,903.62, making balance $200,011.69 instead
of $182,357.74 as mentioned in said answer to 95th interrogatory.
Int 27. Have you prepared a general balance sheet of "A" and
"Z?" divisions as of December 1st, 1876 and September 30th, 1881,
showing the amount due UB" division at said last named date over
and above the amount shown by Exhibit "G" as due UB" for use
of equipment ?
Ans. I have prepared such a statement from Mr. Chase's report
to December 1st, 1876, and from the books and accounts of the
company, also from the annual reports of the company from De¬
cember 1st, 1876 to Sept. 30, 1881, and from statements heretofore
96
put in as exhibits, and here present the same to be annexed to my
deposition marked "Exhibit I, F. S. Streeter, August 29, 1883.
From which statement I make the amount due "B" division Sep¬
tember 30, 1881, $261,236.51, which added to the amount due "B"
division for interest and depreciation of rolling stock to Sept. 30,
1881, as per Exhibit "C" aggregates $474,830.26.
Int 28. In making up your estimates and your division between
"A" and UB" how have you treated them as related to each other,
and what is the custom of railroads in keeping accounts between
their different divisions ?
Ans. They have been treated as entirely different roads, al¬
though under one management.
It is the usual custom unless there is a specific contract or agree¬
ment whereby one division or road receives a certain percentage
agreed upon of the net earnings, so far as my knowledge goes, to
keep separate sets of books of each division, although under the
same management, in order to arrive at a proper and just distribu¬
tion of earnings and operating expenses belonging to each division.
Int 29. State whether separate books were kept by the defend¬
ants—the Portland and Ogdensburg R. R.—showing receipts and
disbursements on account of "A" and UB" divisions?
Ans. They were not. There were no separate general books
kept of "AL" and UB" divisions, but the road was treated as an en¬
tirety—all of the receipts and disbursements entered upon one set
of books.
Int 30. How many divisions in the Central Vt. R. R. ?
(Objected to by Mr. Haskell as immaterial.)
Ans. Seven.
Int 31. In your opinion would it be an advantage or a disad¬
vantage to the "2?" division if it would be operated as an indepen¬
dent road. Give reasons for your answer ?
Ans As an advantage on account of its commanding position in
the line from Portland west, and from Boston by the Eastern road
at North Conway. The rates that it could clearly establish for do¬
ing the business would be of great advantage if the entire proceeds
of such rates were all given to UB" division, it being the only route
now in operation through the White Mountain Notch gives it the
privilege of dictating the rates over its road on the business which
would naturally go that way.
97
Int 32. You have heard it stated UB" division was allowed the
distance between No. Conway and Bartlett in the memorandum of
earnings kept by the company to show what belonged to UA" and
UB" divisions, was this of any advantage to the "2?" division in the
manner in which the accounts were all kept ?
Ans. I have heard it so stated and heard it claimed that it was
an advantage to "JS", but inasmuch as the earnings were divided
pro-rata on an arbitrary mileage, irrespective of the actual percent¬
age based upon local rates, and the expenses were divided upon the
train mileage and miles of road which was increased by the miles
of road claimed to haxe been allowed, I am clearly of the opinion
that the method of division of earnings and expenses as made were
much to the disadvantage of "2?" division.
Int 32. Is that disadvantage stated in the figures showing the
general result you have reached ?
Ans. It is so shown and set forth.
Int 33. What do you say as a railroad man of the correctness
and justness of the results you have shown in figures as due the
UB" division, and the method by which you have arrived at it ?
Ans. I should say they are substantially correct and a just claim
due to "B" division.
Cross Examination by Thomas H. Haskell, Esq., of counsel for
the defendants.
Cross-Int 1. By whom were you employed to make these state¬
ments, and furnish the information which you have given ?
Ans. I was employed by Guy C. Noble in the interest of the
Mercantile Trust Company.
Cross-Int 2. Have you been an officer of any railroad or rail¬
road company ?
Ans. I have.
Cross-Int 3. What railroad or railroad company and what office
have you held ?
Ans. The South Eastern B. R. Co. of Canada, the office of
chief clerk and cashier.
Cross-Int 4. Are you now in the employ of the Vt. R. R. ?
Ans. I am except when engaged in this case.
Cross-Int 5. Is Mr. Guy C. Noble whom you say employed you
to perform this service the attorney or counsel of that road ?
98
Ans. I don't know except from hearsay but understand he is.
I understand the firm of Noble & Smith is of which he is a mem¬
ber.
Cross-Int 6. Where does the traffic of the Central Vt. find the
sea-board ?
Ans. At the port of Boston and New London, Connecticut.
Cross-Int 7. Is not the road with its connections a competing
line with the defendants' road from the interior to the seaboard.
Ans. I would ask what you mean by the interior ?
Cross-Int 8. Is that all the answer you have to give ?
Ans. Until I understand your question.
Cross-Int 9. Do you mean to say as a railroad man you fail to
understand the question ?
Ans. I mean to say that the word interior and the word com¬
peting is capable of a very wide construction.
Cross-Int 10. How many days in all did you spend in examining
the books of the defendant company at their office in Portland ?
Ans. Between 3 and 4 days in the latter part of April and first
of May.
Cross-Int 11. Did you rely for information of affairs of defend¬
ant company prior to December 1,1876, upon the report of the ex¬
pert, R. Stewart Chase, mentioned in defendants' answer ?
Ans. I did upon all matters pertaining to the receipts and dis¬
bursements, with the exception of the division of earnings and ex¬
penses between "A" and "B" divisions from the time the "B" di¬
vision or parts of it was opened for public use to December 1st,
1876.
Cross-Int 12. Have you a copy of that report, and if yes, will
you annex it ?
(Objected to by Mr. Noble because it is immaterial. He does
not object to the figures in the report, but a great deal of the mat¬
ter of the report, the remarks of the expert, he does object to.)
Ans. I have what was given me by Mr. Dana purporting to be
such copy. I have been requested by Mr. Dana not to use such
copy, as he told me that he borrowed the report and did not feel
at liberty to use it without the consent of the owner.
Cross-Int 13. Did you examine the books and accounts of the
company for receipts and expenditures prior to December 1, 1877,
other than the annual reports ?
99
Ans. I did in a general way, that is to say the aggregate of
the annual reports of earnings and expenses to December 1, 1876,
was substantially the same as embodied in Mr. Chase's report, and
as by the use of such figures was verified by the trial balance made
by R. Stewart Chase, I assumed them to be correct on that date—
December 1st, 1876.
Cross-Int 14. Does Exhibit UA" differ in any respect from the
accounts of the defendant company upon that subject other than a
division between "A" and "B" on the basis of local tariff, instead
of a division of 2-3 and 1-3 and 6-11 and 5-11 ?
Ans. It does not. It is for the purpose of showing such differ¬
ences ?
Cross-Int 15. Do you know the reason for fixing the local rates
of the P. & 0. R. R. ?
Ans. Nothing, except what I heard testified to in the deposition
of Charles H. Foye.
Cross-Int 16. • Did you ever know roads doing joint business to
divide earnings upon the basis of the local rates of each ?
Ans. I can't recall to mind any such instance.
Cross-Int 17. What is the usual method of dividing earnings in
such cases ?
Ans. Either by arbitration agreed upon, or by pro-rata on mile¬
age of road ; generally with the qualification that a road should
not recover more than its locals.
Cross-Int 18. In Exhibit "B" what items does your method
there contain not embraced in the company's method beside the
adding of 10 per cent. ?
Ans. Two items of old rails $5000 and $10,000 in the years
1880 and 1881, respectively, and increase of foreign freights for
the years 1880 and 1881 to 63 per cent, from what the company
allowed.
Cross-Int 19. The company for these last two items allowed on
the exact basis of the earnings for those two years, did they not ?
Ans. Not to my knowledge, but suppose they so claim.
Cross-Int 20. Do not the books show the earnings to be as
stated by them for those years ?
Ans. It does in the aggregate. As to the correctness of that
aggregate I cannot say.
Cross-Int 21. Have you any information showing their books in
that regard to be incorrect ?
100
Ans. Nothing but the fact that in 1879 the percentage of for¬
eign freights allowed the "B" division was 63 per cent, and the
aA" division was 37 per cent. In 1880, although the gross
amounts for the two divisions increased $2500 over what it was in
1879, yet by the company's division "B" decreased from 63 per
cent, to 47 per cent., and "A" of course increased proportionately.
The same ratio applies to the year 1881. I therefore adopted
the same ratio of percentage for those two years as was in use in
1879.
Cross-Int 22. The books of the company show that they divid¬
ed each year according to the actual receipts of the respective di¬
visions, do they not ?
Ans. I only know that the memorandum book of such division
shows such aggregate.
Cross-Int 23. And yet you disregard that in fixing your arbi¬
trary rate of 63 per cent. ?
Ans. I did from the fact that this memorandum book was said
to be but an approximate amount, and the years 1880 and 1881
were so entirely out of proportion, that is the gross amounts re¬
maining about the same, and yet "B" division decreasing and "A"
increasing in the same ratio, I therefore adopted the same relative
ratio of percentage as in the preceding years.
Cross-Int 24. Did you make inquiry whether the fact that a
large part of the through traffic for 1878 and 1879 went over aB"
division thence by Eastern R. R., while in 1880 and 1881 it went
over "A" division as well; in the former case giving UB" the whole
receipts, while in the latter case they were divided between "A"
and "B", and that the seeming discrepency was accounted for in
that way ?
Ans. No, I didn't understand any such arrangement.
Cross-Int 25. On exhibit aC" do you understand that the
amount of mileage of cars and engines given by the company was
actual mileage run by each car and engine or train mileage, that is
the number of miles run by the whole train ?
Ans. I understand it to be the actual miles run by each car and
engine on "A" and "B" division.
Cross-Int 26. Is your statement of exhibit aC" based on actual
miles run or on train mileage ?
Ans. Actual miles run on A and B divisions.
101
Cross-Int 27. Where did you obtain your data to compute the
earnings of "B" division prior to September 30, 1877 ?
Ans. The earnings are computed upon the average basis of suc¬
ceeding years, being governed by the miles run, the general ratio
or percentage of division of "A" division from beginning of the
road to September 30, 1877.
Cross-Int 28. But not from actual facts and figures ?
Ans. There were no actual facts or figures on the books. There
was no division made prior to September 30, 1877.
Cross-Int 29. Was there any data on the books of the company
from which such division could be made ?
Ans. I could not find any, neither was I shown any.
Cross-Int 30. From that exhibit "D" what balance was credited
to aB" division in your general summary ?
Ans. $101,862.57.
Cross-Int 31. State where you obtained the figures in Exhibit
aE" for the operating expenses and earnings of the several divis¬
ions for the years 1871 to 1876, inclusive, at the top of the sheet ?
Ans. They were taken from the annual reports of the company
for those years respectively, giving the "A" division the entire net
earnings for the year 1876.
Cross-Int 32. Where did you get the figures in red ink, viz :
earnings $52,220.97, expenses 58,193.32 for those years showing
the divisions ?
Ans. They were taken from Mr. Chase's report and are not em¬
bodied in the results of this statement.
Cross-Int 33. What items in the division as claimed by orators
in Exhibit "E" are not included in the statement made by the com¬
pany ?
Ans. None except those which are embodied in the exhibits
from which these general results are taken, namely exhibits UB"
and "D" hereto annexed.
Cross-Int 34. Where did you get the figures comprised in ex¬
hibit «F" ?
Ans. They are taken from the general books of the company
as per statements furnished to me by Mr. Dana relating to the cost
of equipment, the value of the same equipment December 1st,
1876, from the report of Col. Wilde, a copy of which was procured
for me by Mr. Dana at the same time he procured Mr. Chase's re-
102
port the mileage of such equipment is taken from the reports of
mileage furnished by Mr. Dana so far as they would go, and the
years in which he could not furnish the mileage I have estimated
as per exhibit G.
Cross-Int 35. So that all contained in Exhibit "F" furnished
you by Mr. Dana was the cost of the equipment, was it not ?
Axis. Yes, with the exception of such mileage as he gave me.
Cross-Int 36. For what years did he furnish you a statement of
mileage ?
Ans. I shall have to qualify my answer to the preceding by
saying that none of the mileage contained in this statement was
furnished by Mr. Dana, as I stated, but was taken from the annual
reports showing the train mileage for those years, except such as
was estimated by me as the mileage of freight and passenger cars
as shown in exhibit G.
Cross-Int 37. In that exhibit aF" are the computations and re¬
sults all your own ?
Ans. They are.
Cross-Int 38. Where did you get the data in exhibit G ?
Ans. They were taken from the annual reports and from state¬
ments furnished by Mr. Dana as per the latter part of the Exhibit
G, and Exhibit H.
Cross-Int 39. What part of Exhibit G was furnished you by
Mr. Dana ?
Ans. The mileage of engines and cars from Sept. 30, 1877 to
Sept. 30th, 1881.
Cross-Int 40. Where did you obtain the mileage contained in
Exhibit G, for the years prior to 1877 ?
Ans. From the annual reports of the company and mileage es¬
timated by myself, as per the latter part of this same Exhibit G.
Cross-Int 41. Do the annual reports of the company show the
miles run by passenger and freight cars prior to that date. If not,
how did you arrive at the mileage of such cars ?
Ans. They do not. I estimated the mileage as before stated as
per the latter part of Exhibit G, upon the following basis : In the
year 1878 there was 130,452 miles of passenger engines and 323,-
084 miles of passenger cars on the entire road, which equals 2 48-
100 miles of passenger cars to one mile of passenger engines. The
mileage of passenger engines as shown by the annual reports for
103
each year from 1871 to 1875, inclusive, is multiplied by that aver¬
age of 2 48-100 miles of passenger cars giving the result of the
same average of passenger car mileage based on the passenger en¬
gines as shown by the annual reports for each year from 1871 to
1875, inclusive, is multiplied by that average of 2 48-100 miles of
passenger cars giving the result of the same average of passenger
car mileage based on the passenger engine mileage.
Cross-Int 42. So that your result is estimated from the business
of 1878, is it not ?
Ans. It is, so far as relating to passenger and freight car mile¬
age. I obtained freight car mileage in the same way.
Cross-Int 43. What is the usual charge for the use of freight
cars per mile by one road to another, if you know ?
Ans. In the interchange of traffic the rate is usually from 1 to
2 cents per mile, but where cars are loaned the question of interest
and depreciation generally enters into the question of the rent for
such cars.
Cross-Int 44. Are not freight cars frequently charged for at less
than one cent per mile for their use ?
Ans. There may be such instances.
Cross-Int 45. In Exhibit G what have you charged UA" divis¬
ion for freight cars ?
Ans. Five cents per mile.
JL
Cross-Int 46. Where did you get the data for Exhibit aH" ?
Ans. From the annual reports of the company, assuming accor¬
ding to Mr. Chase's report that the entire equipment charged to
division "A" was purchased prior to November 1st, 1871, and also
in accordance with the answer of the defendants.
Cross-Int 47. What are the expenses which you have divided
between "A" and "B" upon train mileage ?
Ans. Repairs of locomotives. Fuel used by engines and cars
and wages of train men.
Cross-Int 48. Why do you make a division of these expenses
on train mileage and allow the division of other expenses to stand
as made by the company, they being divided at North Conway ?
Ans. As these were the usual expenses divided upon train mile¬
age, and are the principal items divided in that manner, they are
the only items that I undertook to correct, excepting those based
upon the car mileage.
104
Cross-Int 49. You say the ordinary repair of the entire rolling
stock has been apportioned between UA" and UB" by the company
on the basis of train mileage. Do you not know that the company
apportioned the repair of cars on car mileage and not on train mil¬
eage ?
Ans. I should have stated that such expenses were divided by
the company upon the train and car mileage, respectively.
Cross-Int 50. You state that you have divided the earnings for
the year 1876, upon the miles run over the "A" and UB" divisions
including the mileage on the B. C. & M. R. R. Do you not under¬
stand that the portion of earnings between Fabyans and Lunen¬
burg was very much less than that between Fabyans and North
Conway ?
Ans. I did not understand such to be the case except from gen¬
eral principles.
Cross-Int 51. If such was the fact do you think your division a
just one ?
Ans. Should say not, but in justice to myself would say that
Mr. Chase embodied such mileage in his division of expenses for
that period, and the difference in my judgment would be very
small.
Cross-Int 52. What does the company's statement, the net earn¬
ings of the UB" division ?
Ans. $86,318.68.
Cross-Int 53. Your statement shows how much ?
Ans. $263,398.97.
Cross-Int 54. Making a difference of how much ?
Ans. $177,080.29.
Cross-Int 55. What items in round numbers make this increase ?
Ans. I should prefer my exhibits to show that.
Witness desires to correct his answer to interrogatory 14 and all
subsequent interrogatories relating to the division of operating ex¬
penses as having been divided upon the train mileage to read—as
divided upon the train and car mileage. Witness also desires to
correct his answer to cross-interrogatory number 28, so that it will
read "there were no actual facts or figures on the general journal
and ledger. "Also, the answer to cross-interrogatory number 29, so
as to read "1 could not find any, neither was I shown any on the
general journal and ledger of the company, but that the data for
105
such division as made by me was based on train mileage and gene¬
ral average percentage of divisions of subsequent years."
Be-Examination.
Re-Int 1. Do the officials of the Central Vermont Railroad
know anything about the nature of this suit on the issues involved
in it ?
Ans. Not to my knowledge. I have never talked with them
about it.
Re-Int 2. Can you see anything in the questions at issue in this
case that should interest the Central Vt. R. R. in view of your in¬
timate knowledge of its connections and its business ?
Ans. No sir.
Re-Int 3. Can you see where the defendant road comes in com-
petion in any wray with the Central Vermont?
Ans. No sir.
Re-Int 4. Who gave you Col Wilde's report of valuation of rol¬
ling stock December 1st, 1876, and for what purpose ?
Ans. Mr. Dana procured it for me for my information in this
accounting, i. e. information in regard to the value of the equip¬
ment on that date, December 1st, 1876.
Re-Int 5. In making the statement why do you charge 5 cents
per mile for the use of freight cars ?
Ans. Because in my computation of the cost per mile run by
freight cars on this road to cover interest and depreciation, I arriv¬
ed at that figure as being the cost per mile.
Re-Int 6. Why should cost per mile be larger than usually on
roads ?
(Objected to by Mr. Haskell, being new matter and as assuming
a fact not known to exist.)
Ans. Because the business of the road does not give a very
large mileage of such freight cars, while the depreciation and in¬
terest would naturally be nearly, if not quite as large, as upon
other roads. The result, therefore, in this case is a high cost per
mile run.
Re-Int 7. What was the usual charge for use of freight cars
back in 1874 and 1875, and years before that ?
Ans. As near as I can recollect in the interchange of traffic the
106
rate was from 1 to 3 cents per mile run. The price was much high¬
er than at the present time.
WM. 13. HATCH.
United States of America—District of New Hampshire, ss.
In the Circuit Court of the United States.
The above deposition was taken in behalf of the orators before
me, Frank S. Streeter, a Notary Public for New Hampshire, this
30th day of August, A. D. 1883, at Concord in said District, by
agreement of parties, both parties by their counsel, above named,
agreed to waive notice formal caption and all informalities in the
taking, and that said deposition may be used in said cause in the
same manner as though taken on notice and with full formalities.
Said deposition was read to the deponent before signing and the
same was then subscribed and sworn to in the usual form by said
deponent, before me,
FRANK S. STREETER,
[seal.] Notary Public for New Hampshire.
The facts stated in the above certificate are agreed to bv us.
O (/
GUY C. NOBLE, Solicitor for Orator.
T. H. HASKELL, Solicitor for Defendant.
108
DEFENDANTS TESTIMONY.
Depositio?is taken May 30, 1884, at Portland, on behalf of the
Defendant.
DEPOSITION OF JOHN W. DANA.
John W. Dana, a witness called by the defendant, being first du¬
ly sworn, deposed as follows in answer to interrogatories proposed
by Chas. F. Libby, Esq., of counsel for the P. & 0. R. R. Co.
Int 1. Give your name, age, business and residence ?
Ans. John W. Dana; age, 40 years ; I am treasurer of the
Portland & Ogdensburg R. R., and am also cashier for the receiver
of said road ; I live in Falmouth.
Int 2. Have you read the deposition of William B. Hatch, tak¬
en by complainant in this case, and the exhibits attached to the
same ?
Ans. I have.
Int 3. What examination of the books and accounts of the P.
& 0. R. R. was made by Mr. Hatch, and when ?
Ans. Mr. Hatch made such examination of the books and ac¬
counts of the Co. as he could in the space of three or four days,
which was the amount of time he spent upon them in the latter
part of April or the first of May, 1883.
Int 4. Calling your attention to exhibit "A" attached to his
deposition, state whether or not the basis of division which he has
assumed in that exhibit, is recognized by any railroad with which
you are acquainted, and if not, in what respect the division is un¬
fair or erroneous ?
Ans. The basis is not recognized by any other railroad with
which I am acquainted. It is unfair and erroneous because contra¬
ry to the general practice of railroads in the division of joint re¬
ceipts from passengers and freight. It is unfair and erroneous,
also, because in establishing his basis, he has selected such local
rates as would make his theory enure to the benefit of B division
regardless of the fact that many of the rates on A division are
much higher than the ones selected by him.
109
Int 5. Please examine exhibit B, attached to Mr. Hatch's depo¬
sition, and state in what way he has applied his theory, and in
what respects the results therein shown are erroneous ?
Ans. He has assumed, in the working out of his theory, that,
because certain local passenger rates on B division are higher per
mile than certain passenger rates on A division, the earnings of B
division, as shown by the Co., should be increased by the addition
of ten per cent of such earnings, whether passenger or freight.
He made no account of the local freight rates on the two divisions,
which are in fact lower on B division than on A division, but based
his addition to both freight and passenger earnings upon the local
£>assenger rates selected by him for the establishing his theory. He
is unfair and unjust in the carrying out of his theory, because he
adds ten per cent to all the earnings of B division, whether local or
foreign. The principal earnings of B division, both passenger and
freight, were from passengers and freight that passed over B divis¬
ion solely, and were credited by the Co. only to B, are not divided
at all between A and B, so that it is manifestly unfair to increase
these earnings of B, by adding ten per cent to them from the
amount earned by A from other sources, when A has never been
credited with any portion of these earnings, but the entire amount
of these has been credited to B. The amount of local freight be¬
tween stations on B is trifling, and none of the freight on B, except
such freight, pays full tariff rates. The bulk of freight passing
over A and B jointly, consists of lumber and wood, which is carried
at special rates, much below tariff rates, and through freight which
is carried at very much less than tariff rates. The rates on through
freight cannot be dictated by B on account of commanding posi¬
tion ; it must take what it can get in competition with other lines.
The only through freight, of any consequence, it ever had inde¬
pendent of A, it lost from competition with other lines on the oth¬
er side of the mountains. On the other hand, the bulk of A's
freight earnings is from local freight, wholly between stations on A
division. It is unfair to take any portion of this from A and add
to B's proportion. Mr. Hatch is unfair also, in arbitrarily adding
certain amounts to the foreign freight items of B division for 1880
and 1881, because the foreign freight of those years as credited by
the Co. to B division, was less than the foreign freight credited by
the Co. to B division in 1878 and 1879. The falling off in 1880
110
and 1881 of B's proportion of foreign freight was caused by loss of
business between Boston and points on Eastern Railroad, and the
Vermont division of the P. & 0. R R., which business during 1878
and 1879 passed over B division, exclusively, and was all credited
to B, and none to A.
After the loss ol that business on account of its being diverted
to the Connecticut river road at St. Johnsbury, namely in 1880 and
1881, the bulk of the remaining through or foreign freight passed
over both divisions to and from Portland, and A was consequently
credited with its proportion, which of course, increased A's and di¬
minished B's proportion of foreign freight. In the same exhibit,
B, in addition to the arbitrary addition to B's income, as shown by
the Co., of ten per cent of the freight and passenger earnings, Mr.
Hatch has further increased the net income of B by a reduction of
such items of expenditures as were based upon mileage. The com¬
pany charged B on a basis of 31 miles. Mr. Hatch has reckoned
them on a basis of 29 miles. In the company's division of earn¬
ings B is credited a mileage of 30 miles. Mr. Hatch allows these
earnings to stand, and adds ten per cent to them, so that he has
figured the earnings on a basis of 30 miles, and expenses on a ba¬
sis of 29, which is entirely unjust. He also increases the net earn¬
ings of B by striking out the amounts charged to that division by
the Co. for a proportionate expense of maintaining the repair
shops, leaving A to bear the whole expense of these shops. He
further increases B's income by adding an estimated amount of fif¬
teen thousand dollars for old rails taken up on B division and used
upon A. The actual value of such rails was $8576.00, so that he
makes an erroneous credit to B of $6424.00.
Int 6. Please examine Exhibit D, annexed to said Hatch's dep¬
osition, and state if the accounts as made up by him are correct,
and if not, in what respect they are erroneous ?
Ans. Exhibit D shows the earnings claimed by Mr. Hatch for
B division for the years 1874, 1875, 1876, 1877. The years 1874
and 1875, are estimated upon the percentages of 1876 and 1877.
B division was not completed to Fabyans until August 8, 1875, and
not completed to Lunenburg until December, 1875. Up to Au¬
gust, 1875, less than twenty miles of B were in operation. The
freight business was then undeveloped and it is manifestly unjust
to assume that we earned in these years of 1874 and 1875, the
Ill
same percentage of the gross earnings of the entire line, that it
did in 1876 and 1877, when it was as fully completed as it now is.
He divides the earnings for the year 1876 upon train mileage in¬
cluding the mileage on the Boston, Concord and Montreal R. R.,
which gives B a percentage of 31 per cent of earnings. It is un¬
fair to include the mileage of the B. C. & M. R. R. in arriving at
B's proportion, because the bulk of travel did not go beyond Fa-
byans. The travel on the B. C. & M. R. R. for which B should
have credit, was very much less than that on any other portion of
the P. & 0. R. R. line.
He assumed that all the travel on B division passed over the B. C.
& M. R. R. line, which is contrary to the fact. His claim for earn¬
ings for the year 1877 are based upon the per cent allowed B in
1878. I have already shown the error in his claims for 1878 as
shown in Exhibit B. He claims a net earning for B division for
1874, $6,000.00; for 1875, $31,000.00; for 1876, $34,065,55;
for 1877, $30,797.02.
The expert, R. Stuart Chase, who examined the books and ac¬
counts of the Co. in the fall and winter of 1876 and 1877, made a
statement of the earnings of B division for the year 1876, compiled
from a careful examination of the accounts of the company and of
reports and data from which those accounts were made up in which
he showed a deficit of $5972.35. His results were based upon
mileage, a customary basis for all such division. Mr. Hatch, after
three days examination of the books of the company, figures out
a net earning of B division for that year of $34,065. Making a
difference of some forty thousand dollars between his result and
that of the expert, Mr. Chase, in favor of B division. Previous to
Oct. 1, 1877, the company kept no division of these accounts, and
there is no data to show any such earnings of B division as Mr.
Hatch claims. Probably the gross earnings of 1874 and 1875 of
that division would not be as much as he claims the net earnings to
have been.
Int 7. Calling your attention to Exhibit E attached to said
Hatch's deposition, showing net earnings of B division from Sept.
12, 1870, to Sept. 30, 1881, as made up by the Co., and also as
claimed by Mr. Hatch, and which in the latter's claim, shows a bal¬
ance of $177,080.29, as due to the B division in excess of the
amount allowed by the Co., please state what, if any, portion of
said $177,080.29 is justly due said B division ?
112
Ans. In my opinion no portion of said amount of $177,080.29
should be allowed B division, except the sum of $8756 for old
rails.
Int 8. Please examine Exhibits F and G attached to said Hatch's
deposition, and state whether or not the basis of his computation
as to the rate charged A division for use of rolling stock is in ac-
O O
cordance with the practice of railroads, and in what respect, if any,
it is inaccurate or objectionable ?
Ans. His basis is entirely opposed to common practice. The
usual charge for mileage of passenger cars is two cents instead of
four. The charge for mileage of freight cars on all but one of the
New England roads is one cent per mile, including the Central
Vermont road, with which Mr. Hatch is connected, and outside of
New England the customary charge is three-quarters of a cent per
mile, instead of five cents as charged by Mr. Hatch.
His charges to A division for mileage of B's cars is entirely un:
fair also, because A is charged for the repair of these same cars,
that is to say, in the division made by the Co., A is charged for the
repairs of all cars in proportion to the mileage of such cars on A
division. In his exhibit B, he allows this charge to stand and adds
to it by a reduction of B's proportion, and in his exhibit G, he
charges A four and five cents per mile according as they are pas¬
senger or freight cars, for the use of these cars.
In the answer of the company in this case in answer to the 12th
special interrogatory contained in the bill, a statement is made
showing the result in case B repaired its own rolling stock and
charged A the customary rate for the use of it, such rate being
seven cents per mile for locomotives, two cents a mile for passenger
cars, one cent a mile for freight cars, which results show a deficit
for the four years 1878, 1879, 1880 and 1881, of $2603.25, against
B division. The fallacy of the theory by which Mr. Hatch arrives
at a rate per mile for the use of rolling stock is apparent. Take
for instance the locomotive "Carrigan" which is one of the five
locomotives taken by him to establish his theory, as per exhibit F.
The locomotive cost in 1874, $15,000.00; in 1876, after the ^expi-
ration of but two years, he values it at $8000.00, there having
occurred no special depreciation. The same locomotive was valued
in April of this year, by two locomotive experts, in their report to
the receiver of the P. & O. R. R. now on file in this case, at $6500,
after some eight years further service.
113
The absurdity of the whole is shown by the fact that in answer
to interrogatory 21, in his deposition in this case, he states the cost
to Sept. 30, 1881, of all the rolling stock belonging to B division to
be $253,740.21, and in answer to interrogatory 23 he states that
their is a balance due to B division for the use of this same rolling
stock by division A, of $213,593.75, as shown by exhibit G. I
believe his computation to be inaccurate also, because he takes the
ratio of car mileage to train mileage in 1878 as a basis for ascer¬
taining the car mileage of the previous years, since 1871, without
regard to the fact that the number of cars in a train constantly in¬
creased from 1871, as the business of the road developed, thereby,
consequently increasing the car mileage, so that the ratio of car
mileage to train mileage was very much greater in 1878 than in
1871, and subsequent years, when he used the ratio which he found
in 1878.
Int 9. What, if any, of the total amount claimed by Mr. Hatch
as due to B division, according to Exhibit G, amounting to $213,-
593.75, should in your judgment be allowed ?
Ans. None of it.
Int 10. Please examine Exhibit I attached to said Hatch's dep¬
osition, and state in what particulars, if any, it is inaccurate, and
annex to your answer an analysis of the total amounts claimed un¬
der all these exhibits as due division B, stated in his deposition in
answer to Interrogatory 27, as $474,830.26, made up of the totals
of Exhibit I ($261,286.51) and exhibit G, as above ?
Ans. Exhibit I is inaccurate in the following particulars, an er¬
ror of $17,653.65 in the cost of equipment, which amount Mr.
Hatch claimed that I was in error in my previous testimony as per
the answer to interrogatory 26 of his deposition. I find on exam¬
ination of the books that 1 was correct. An error $4585.00 ac¬
count of ice cars which I find was not charged previous to Dec. 1,
1876, as claimed by him.
An error of $6424.00 in value of old rails included in his result
per Exhibit B, a claim of $177,080.29, earnings from 1874 to
1881, inclusive, for reasons previously stated. I find upon further
examination of the books, as additional amounts properly charge¬
able to B the sum of $5333,34, on account of locomotive "Frank¬
enstein", which was charged to A division, and two smaller items
for equipment, $829.05. Upon an analysis of his total claim of
114
$474,830.26 as due B division I find it made up of the following
items :
1. Net earnings for the year 1874, $6000.00
2. ditto " " 1875, 31,000.00
3. ditto " " 1876, 34,065.55
4. ditto " " 1877, 30,797.02
5. Arbitrary addition to earnings of 1880, 6588.31
6. Arbitrary " to earnings of 1881, 6766.41
7. Ten per cent addition to earnings of 1878, 1879, 1880 and
1881 (including arbitrary of $13,354.72 in 1880 & 1881) 36,592.29
8. Reduction of operating expenses by reduction of mileage, 10,270.71
9. Old rails carried from B division to A division, 15,000.00
10. Amount received from sale of bonds of 1871 in excess of
expenditures on construction and equipment accounts, 77,571.22
11. Error in charge for ice cars, 4585.00
12. Error in charge for locomotive "Crawford" 2000.00
13. Mileage for use of B's rolling stock, 213,593.75
Making a total of $474,830.26
I consider all these items as erroneous except a portion of item 9 for
old rails, $8576.00
Item 10, 77,571.22
Item 12, 2000.00
Total, $88,147.22
From this I should deduct the three errors before stated on ac¬
count of equipment, namely, $17,653.65; $5333.34; $829.05; in
all $23,816.04, leaving a balance of $64,331.18. As the whole is¬
sue of bonds of Nov. 1, 1871, amounting to two million, five hun¬
dred thousand dollars, is secured by a second mortgage on A divis¬
ion, there was no impropriety in spending the amount of sixty-four
thousand, three hundred and thirty-one dollars and eighteen cents,
a comparatively small amount on that division. In fact, if the
equities of the case were consulted, A would be entitled to as much
larger share in the expenditure of this $2,500,000.00, so that in
fact, instead of A being indebted to B in the sum of $474,830.26,
as claimed by Mr. Hatch, B is largely indebted to A.
Int 11. Please state whether or not from the time of the open¬
ing of the B division for business, to the time of the filing the
answer in this case, there have or not been any earnings of B di¬
vision in excess of the amount expended thereon ?
Ans. I should say No.
115
Int 12. Please give the net earnings of A division for the years
1878, 1879 and 1880 & 1881, respectively, I mean for the financial
year of the Co. terminating Sept. 30, of each year ?
Ans. The net earnings of A division for the year 1878
were $45,861.98
For the vear 1879, 63,853.92
" " * " 1880, 92,610.44
" " " 1881, 80,952.60
Int 13. During the years 1877 & 1878, was any interest paid
on the first mortgage bonds, and if not, what use was made of the
income derived from A division during those years ?
Ans. The coupons on the first mortgage bonds due in 1877 and
1878 were funded in scrip, of which scrip the amount of $18,720.-
00 was paid in 1877 & 1878. The total interest on these bonds
was $96,000.00. Aside from the payment of this $18,720.00, the
whole net income of A division was used for the general purposes
of the whole road, including the improvements on the road and
payments for rolling stock.
Int 14. Will you state, if you can, what the net earnings of A
division were for the year 1877 ?
Ans. The net income of the Co. for the year ending Sept. 30th,
1877, were $69,431.06. I believe the whole amount to be an earn¬
ing of A division.
Int 15. Who prepared the exhibits of the receipts and expen¬
ditures of the Co. contained in its answer filed in this case, and if
prepared by you, state whether or not the same are to your knowl¬
edge accurate ?
Ans. I prepared them. They are accurate to the best of my
knowledge and belief.
Int 16. State from your knowledge of the accounts and trans¬
actions of this road, whether or not the appropriation of it's reve¬
nues have been faithfully applied to the benefit of the whole road,
without discrimination against B division, as claimed in the bill ?
Ans. I believe they have been so applied.
May 31, resumed.
Int 17. In the Exhibits annexed to the answer of the Co. in
this case, it appears on printed page 26, that a sum of $3,259.50
was paid in the year 1879-80, on coupons City Bonds, please ex¬
plain what that payment was ?
116
Ans. The coupons on the bonds owned by the City of Portland
in and of the P. and 0. R. R. were to be paid by the railroad,
these coupons were paid by the Co. as they fell due and were pre¬
sented, to and including coupons due Sept. 1, 1875, with the ex¬
ception of these particular coupons which were held temporarily
by the Portland Savings Bank, as an accommodation for the Co.
upon request of its treasurer, the company not being in funds on
the day these coupons fell due, to pay the entire amount of such
coupons. It was the agreement and understanding that these cou¬
pons should be paid in a few days, but, although repeatly requested
by the Portland Savings Bank to pay them, the Co. neglected so
to do, until Sept. 20, 1880, although the Co. had defaulted upon all
the coupons on city bonds since Sept. 1, 1875, these particular cou¬
pons, held by the Portland Savings Bank, were considered a debt
of honor by the Co., all the other coupons of that date having
been paid to the holders.
lnt 18. Please state whether or not any of the bonds issued un¬
der the consolidated mortgage of Jan. 1, 1875, have ever been
paid ?
Ans. None of them have been paid.
Cross Examination by Jos. W. Fellows, solicitor for Plff*>
Cross-Int 19. In your several answers to Interrogatories 5, 6, 7
and 8, you frequently refer to Mr. Hatch's testimony, and the the¬
ory upon which you claim he makes his statements, state whether
or not, such references are the expression of your opinion upon the
fairness of his estimates simply, and further, whether or not your
testimony on that subject is not an expression of your opinion sim-
p'y?
Ans. My criticisms upon Mr. Hatch's theories are based upon
my knowledge of the general custom of railroads acquired by elev¬
en years occupation in the employ of a railroad company, in which
the accounts between said railroad and other railroad companies
have been settled through my office. I believe that the results as
ascertained by me, should have more weight than those ascertained
by Mr. Hatch, because my results are based upon the actual prac¬
tice of railroads, while his are based upon theories contrary to such
practices.
Cross-Int 20. Is it any more than an expression of your opinion
upon the subjects considered, as opposed to his ?
Ans. I think it is.
117
Cross-Int 21. It is your opinion, is it not, upon his method of
arriving at results ?
Ans. It is more than that. It is pointing out where in many
cases, if his theory was a correct one, he has misapplied it, as fully
shown in my deposition.
JNO. W. DANA.
DEPOSITION OF R. STUART CHASE.
Robert Stuart Chase, a witness called by the defendant, being
first duly sworn deposed as follows :
Int 1. By Chas. F. Libby, Esq., of counsel for the P. & 0. R. R.
Co. State your name, age, residence and occupation ?
Ans. Robert Stuart Chase ; age, 52 ; residence, Haverhill, Mass.
occupation, General Auditor of Accounts.
Int 2. State what your experience has been as an accountant,
and if you have been employed as an expert in railroad accounts,
state in what connection ?
Ans. I have been largely occupied in accounts for the past
thirty years, and for the past eleven years exclusively so. I have
in pursuance with the business, audited the accounts of numerous
corporations, including cities, towns, banks, both National and Sav¬
ings, insurance companies, manufacturing corporations, steamboat
companies, railroad and other corporations. I am at present time
stated auditor of the Manchester Mills, Lowell Carpet Co., Boston
& Bangor Steamboat Co., Shoe and Leather Ins. Co., First National
Bank, Haverhill, Haverhill Savings Bank, and Fairchild Paper Co.
I am, and have been for past four years, employed as examiner of
the accounts of the City of Boston.
Int 3. State whether or not at any time you were employed to
make an examination of the affairs of the Portland and Ogdens-
burg R. R. Co., if so, state what the scope of your examination
was, and how long you wrere occupied in examining the same ?
Ans. I was employed by the committee on behalf of the City
of Portland, or, I should properly say, the Railroad Commissioners
on behalf of the City of Portland, in the month of Nov., 1876, to
118
examine the accounts of the Portland and Ogdensburg railroad,
and made the examination in the months of Nov. and Dec., 1876,
and of January, 1877.
I was directed to examine into the methods of bookkeeping and
to pronounce on the faithfulness and accuracy of the same, to make
up a statement of the actual condition of the road at that date, and
also of all its receipts and outlays up to that time, also to ascertain
the actual cost of construction and equipment of the road, and pre¬
pare a special exhibit of the operating receipts and expenditures
for the year 1876 ; at a later stage I was also directed to make a
division of this last exhibit into two schedules, one representing
what was called the A division, and the other the B division, based
ou the actual mileage of the respective divisions.
Int 4. State the method you employed in reaching the result
embodied in your report, and the amount of time you devoted to
the same ?
Ans. I examined in full detail, all the accounts for expenditures
and the vouchers authenticating the same, from 1869 to 1873, and
subsequently with sufficient fulness to satisfy myself of the entire
faithfulness and accuracy of the accounts as kept by the officers of
the company. The tables and results presented were made by an
analysis in detail of all the accounts of the company bearing on
the subject of my report. The work employed me for about eight
weeks.
Int 5. How carefully did you examine the accounts with refer¬
ence to the receipts and expenditures for the year 1876, and what
results did you reach ?
Ans. In making up the tables of operating receipts, I computed
from the original entries and returns of tickets at sales and freight
bills, and all other receipts, computing in detail, the earnings from
local tickets, conductors' sales, through tickets, mileage tickets, &c.
and apportioned them separately to the two divisions on a basis of
mileage, and in my report of these computations, I found the B
division deficient that year in the sum of $5972.35, and that A di¬
vision had a surplus of $78,887.90.
Int 6. Have you read the deposition of Wm. B. Hatch, taken
by the complainant in this case, and examined the several exhibits
annexed thereto ?
Ans. I have read the deposition and examined the several ex¬
hibits, though briefly.
119
Int 7. Calling your attention to exhibit "D", sheet No. 3, an¬
nexed to said deposition, state whether or not the net earnings of
$34,065.55 of B division for the year 1876, as there shown, is or
not correct ?
Ans. I do not consider the result as correct.
Objected to. The correctness of Hatch's testimony being for the
Court to consider, and not a subject for witness to pass upon.
Int 8. In view of the statement as made in that exhibit, have
you any reason to change the result as found by you of a deficit of
B division for that year of $5972.35 ?
Ans. No, I have not. My exhibit was made on a basis of act¬
ual mileage, a basis adopted by the commission which employed
me, and which seemed to me then, and which seems to me now,
the only practicable basis for an equitable division.
Same objection as to 7.
Int 9. Please state whether or not the year 1876, was or not a
more favorable year than any preceding for testing the earning ca¬
pacity of B division of the r*oad ?
Ans. Judging from my investigation of the accounts, I should
say it was a more favorable year.
Int 10. Please examine exhibit I annexed to said Hatch's depo¬
sition, and state whether or not the item of $4585, claimed for
balance due on ice cars, claimed by Mr. Hatch as charged out be¬
fore Dec. 1, 1876, was included in your account ?
Ans. I am satisfied that it was not by the records of the books
of the Co.
Int 11. Have you been present during the examination of John
W. Dana, treasurer of the Co., before the examiner this day, and
heard his deposition as given ?
Ans. I have been present and have heard most of it, and have
since read it over.
Int 12. State whether or not you concur with him in the errors
pointed out in the deposition of Mr. Hatch, relating to the accounts
of this road, and the reasons assigned by him for the same ?
Objected to. Not competent for witness to give opinion upon
correctness of another witness' testimony.
Ans. As far as I am able to judge of them, I do agree with Mr.
Dana in his views, and all the examination I have given to the
books and accounts of the P. & 0. R. R. Co., confirm his statements
and positions.
120
Int 13. What do you say as to the propriety or accuracy of the
theory of Mr. Hatch in adding ten per cent to the receipts of B
division as shown in his Exhibit B, on which his results are based ?
Ans. I think the assumption of adding ten per cent to the tab¬
ulated estimates of the Co. for B's proportion of earnings is an ar¬
bitrary one, not established by actual computation. If another
basis than mileage is taken, there are so many elements justly be¬
longing to the question, that only the most elaborate study of all
the passenger and freight receipts could educe a safe and just re¬
sults.
Int 14. What elements do you refer to above as entering into
such a computation ?
Ans. Actual mileage fares on all parts of the road. Actual
earnings on the respective fares; the proportion of freight and
passenger earnings, and their relative rates : the amount of local
earnings on special mileage rates, the amount of respective earn¬
ings as constituting special rates, the earnings of regular mileage
tickets, rebates on freights on different divisions and their rates,
and other points which might be mentioned.
Int 15. From your acquaintance with the manner in which the
accounts of this railroad have been kept, and the facts you have
learned in your examination of the same, will you state generally
in what manner the affairs of the road have been managed in ref¬
erence to economy and efficiency of administration ?
Ans. In my examination of accounts, I found the financial af¬
fairs of the road administered with faithfulness, and its operating
expenses compared favorably with other roads of its class.
Objected to. Witness not shown any knowledge of other R. R's
and not qualified to give opinion.
Int 16. From your acquaintance of the manner in which the
accounts of this road have been kept by its present treasurer, Mr.
Dana, state whether or not you consider him a competent and ac¬
curate accountant?
Ans. I found Mr. Dana's accounts accurately kept and so re¬
ported to the commission. All my investigations I have made, have
proved him to be accurate and competent.
Answer objected to as matter of opinion and as wholly irrelevant
to the question in controversy.
121
Cross Examination by Hon. J. W. Fellows., of counsel for the
Mercantile Trust Co.
Cross-Int 17. State the extent of your experience in auditing
the accounts of different railroads, also, whether or not your duties
as auditor of various corporations as recited in your answer to Int.
2, does not lead you to an examination of the accuracy of the ac¬
counts and statements principally in a mathematical point of view ?
Ans. I have examined the accounts of the Maine Central Rd,
the Portland and Rochester R. R., the Nantucket Beach R. R. Co.;
that is all I recall now except the P. & 0. R. R. As regards the
auditing, my work has been not only to verify the mathematical
work, but also to test the faithfulness of the accountants, and of
the officers in their disposition of the moneys of the corporations.
Cross-Int 18. Has not your experience led you chiefly to study
and work upon the matter of accuracy in keeping of accounts, and
confined you to figures and vouchers in the discharge of your du¬
ties as auditor, in the manner stated, and whether or not you claim
to be an expert in the matter of operating railroads, and in railroad
accounts ?
Ans. My chief work as auditor is upon mathematical details of
accounts, but in these examinations my labors are not exclusively
confined to figures and vouchers. I do not claim to be a special
railroad expert, but do claim to be an expert on general accounts.
Cross-Int 19. In your examination of the accounts of the P. &
0. R. R., what was the object and aim of your work ; whether it
related to the accuracy of the accounts in a mathematical point of
view, and the verification of vouchers, or to establish theories and
bring about results ?
Ans. My first object was to ascertain as to the faithfulness and
accuracy of the accounts. By faithfulness I mean the honesty of
the officer in his accounting transactions; by accuracy, I mean the
correctness of his mathematical work. My object was, second, to
draw up an exhibit of the actual condition of the Co. as shown by
its accounts ; third, to present an exhibit of all the receipts and
outlays of the Co., from its commencement to Dec. 1, 1876, divided
under appropriate heads; fourth, to present an exhibit of the op¬
erating receipts and expenditures for the year 1876, and to divide
122
the same as a basis of mileage, as between divisions called A and
B. I had no theory of my own to establish or present.
R. STUART CHASE.
N. B. After the deposition was given the witness desired the
examiner to state that he, deponent, found on examining his records
that he was occupied during eight different weeks in Nov., Dec.,
and Jan., and that he averaged only 4 1-4 days each week or 34
days in all.—June 1, '84, W. H. H., Ex'r.
DEPOSITION OF CHARLES H. FOYE.
Charles H. Foye, a witness called by the defendant, being first
duly sworn, disposed as follows, viz : [by Ohas. F. Libby, Esq., of
counsel for the P. & 0. R. R. Co.]
Int 1. State your name, age, residence, and occupation ?
Ans. Charles H. Foye; age, 41 ; residence, Portland ; I am
clerk and general ticket agent of the Portland & Ogdensburg R. R
Company. I am general ticket agent and auditor of receipts for
the receiver.
Int 2. How many years have you been connected with the road,
and what connection have you had with the accounts in the freight
department during that period ?
Ans. Fifteen years. All the accounts of the freight department
between local stations and connecting lines have passed through
my hands.
Int 3. Have you read the deposition of Wm. B. Hatch, and the
accompanying exhibits ?
Ans. I have.
Int 4. Please examine Mr. Hatch's answer to interrogatory 14
of his deposition, and also the different sheets of Exhibit D, relat¬
ing to the same, and state whether or not his assumption as to er¬
rors in returns as to foreign freight in the years 1880-81, as made
by the Co., is correct, and if not, what are the facts relative to the
same ?
Ans. Mr. Hatch's assumption of errors in the Co.'s statement is
123
not correct. The larger comparative earnings on foreign freight
on B division in the years 1878 and 1879, were due to a large
amount of business between Vermont and Eastern railroad points
leaving the P. &. 0. R. R. at No. Conway. This business was lost
in 1880 through the competition of the Passumpsic railroad and
was diverted.
He has applied the same basis in computing the freight earnings,
notwithstanding that the local tariff freight rates on A division are
higher than on B division for corresponding distances. There are
some connecting rates on A division which are very much higher
per mile than any on B division.
Int 8. Who has arranged in behalf of the P. & 0. R. R. the ba¬
sis of division of passenger and freight rates with other and con¬
necting roads?
Ans. That has been my duty, and I have attended to all passen¬
ger business since the operating of the road, and to the settlement
of all freight accounts.
Int 9. Please examine Exhibit E attached to said Hatch's dep¬
osition and state whether the accounts of the railroad in your de¬
partment or the facts of the case, within your knowledge, justify
the claim of earnings of B division for 1874 to 1881 inclusive as
made by him in that Exhibit ?
Objected to as it calls for an opinion of the witness on the evi¬
dence in the case.
Ans. I answer that they do not.
Int 10. What knowledge have you of the accuracy of the
statements made by the Co. of the earnings of the said division
for the same years (1874 to 1881, inclusive) ?
Ans. The traffic of the Co. previous to 1877 was thoroughly
analyzed by Mr. Chase, employed for that purpose and knowing
the case, and the time which he expended thereon. I am satisfied
in my own mind that his report is correct up to Dec. 1, 1876, the
year 1877 was not divided. For the years 1878, '9, '80 and '81,
our accounts of earnings have been divided in detail and the results
shown by the Co. are correct to the best of my knowledge and be¬
lief.
Ans. objected to because it states matters not within witness'
knowledge and gives opinions he is not competent to express.
Int 11. From your knowledge of the business of the road, and
124
the accounts relating to the same, state whether or not there has
been any surplus of earnings in B division above the expenditures
on the same, from the time of the opening of said division for bus¬
iness to the time of the filing of the answer in this case ?
Ans. I should say that while the traffic accounts may show a
balance earned by B division, I am confident that this balance has
been entirely absorbed and more than that expended on B division
in improvements and equipments.
This Ans. is objected to by plff. because it is calling for an opin¬
ion upon a matter which is a subject of evidence and not of opin¬
ion.
Int 12. State whether or not you have knowledge of the usual
rate charged for use of passenger and freight cars on railroads in
New England, and if so, state what these rates are ?
Ans. I have such knowledge from frequent observation of such
accounts. The usual charge for freight car mileage on New Eng¬
land roads is one cent per mile, and the usual charge for passenger
car mileage is two cents per mile. 1 do not recall that we have
ever paid more than these rates, for several year's past.
Int 13. State what has been from the opening of the road up
to the filing of the answer in this case—the character of the prin¬
cipal business of the P. and 0. R. R. ?
Ans. The local business, that is the business between its local
stations.
Cross Examination btj Eon. J. TV. Fellows., of counsel for the
Mercantile Trust Co.
Cross-Int 14. In your answer to Int. 11, you say that the earn¬
ings on B division have been entirely absorbed, and more than that
expended on B division in improvements and equipments ; what
earnings do you refer, and to what improvements and equipments
do you refer to ; please explain particularly ?
Ans. I did not state that as a fact but as my belief My belief
is founded upon my general knowledge of the operation of the
road, and the doings of its managers. I mean the entire earnings
of B division up to the time of filing the answer in this case. I
mean the general improvements of the road and its stations, build¬
ings and rolling stock. The accounts of the improvements and
equipments are not in my department.
CHAS. H. FOYE.
125
DEPOSITION OF PHILIP H. BROWN.
Philip IT. Brown, a witness called by the defendant, having been
duly sworn, May 31, 1884, testified as follows in answer to inter¬
rogatories proposed by Chas. F. Libby, Esq., viz :
Int 1. State your name, age, residence and occupation ?
Ans. Philip H. Brown; age, 52; residence, Portland ; I am a
banker.
Int 2. Are you the Philip H. Brown named as one of the Trust¬
ees in what is known as the "consolidated mortgages" from the
Portland & Ogdensburg R. R. Co., the Lamoille Valley Junction R.
R. Co., the Essex County R. R. Co., the Montpelier & St. Johnsbury
R. R. Co., the Lamoille Valley R. R. Co. to Israel Washburn, Jr.,
Philip Ilenry Brown and Luke P. Poland, Trustees, dated January
1, 1875, of the railways and other property of the above recited
companies, and in the document here produced by you the original
mortgages as executed by said several companies ?
Ans. I am the trustee named therein, and this the original in¬
strument of mortgage named.
By agreement of counsel a printed copy of said mortgage
marked W. H. H. Ex. May 31, 1884, No. 172, is to be filed and
used as evidence in place of the original instrument.
Int 3. Please state how many of the bonds issued under the
said mortgage are still outstanding ?
Ans. Sixty thousand dollars at par value.
Answer objected to as an incompetent mode of proof.
Int 4. Please state the numbers and denomination of bonds so
outstanding ?
Ans. No. 21 to 36, both inclusive, Nos. 106 to 123, both inclu¬
sive, 125, 751 to 764, 766 to 770, 1101 to 1106, all inclusive, and
of denomination of one thousand dollars each. All the rest have
been destroyed.
Int 5. Through whom were these bonds issued ?
Ans. Through myself. I had the general custody of the secu¬
rities for the trustees.
Int 6. Please state whether or not since the above bonds were
issued, you have seen any of them in the hands of holders, and
whether or not to your knowledge any of them have since been
paid ?
Ans. I have seen some of them since their issue in the hands of
126
holders, and do not know that any of those above stated as out¬
standing have been paid.
Cross-Int 7. Do you know whether there are any outstanding
still due and unpaid, to your own knowledge ?
Ans. No, I have no personal knowledge.
PHILIP HENRY BROWN.
DEPOSITION OF GEORGE B. JACKSON.
George B. Jackson, a witness called by the defendant, having
been first duly sworn deposed as follows :
Int 1. By Chas. F. Libby, Esq. of counsel for the deft. Please
give your name, age, and occupation ?
Ans. George B. Jackson ; age, 54 ; I am president of the Maine
Central Railroad, and have been for six years.
Int 2. Had you occasion at any time to examine into the secu¬
rity .of the second mortgage bondholders of the Portland & Og-
densburg Railroad, and if so, in what connection ? I refer to the
mortgage of Nov. 1, 1871.
Ans. Prior to being president of the Maine Central Railroad, I
was treasurer of the Portland Rolling Mill, and I had occasion to
examine the mortgage and bonds of the issue referred, some of
which were held as collateral by the Portland Rolling Mill.
Int 3. Are you acquainted with the general business of the
Portland and Ogdensburg Railroad, and its situation as to other
roads in New England ?
Ans. I am acquainted with it and know its general situation.
Int 4. Will you state what effect, if any, in your judgment, the
separation of the mountain division from the rest of the road would
have upon the security of the mortgage bondholders ?
Objected to. Not a subject for witness' opinion. It is of the is¬
sue and for the Court.
Ans. I think the separation of the road in two parts would be
injurious to the interest of the bondholders.
Int 5. State whether or not in your judgment, the lien which
the bondholders of the mortgage of Nov. 1, 1871, had upon the A
division, so called, is of any value ?
Objected to. Witness not qualified to give opinion.
Ans. I have no doubt it is valuable, the road being worth in
my opinion more than the $800,000 mortgage.
Int 6. State whether or not in your judgment, a sale of the
Mountain division apart from the rest of the road would or not ef¬
fect the security of said bondholders, and if so, in what manner ?
Same objection as to Int. 4.
Ans. I think it would effect them injuriously. The position of
the road is such, that a large part of the earnings of the A division
must come from operating the B division, and not separate from the
A, and they could not probably be operated separately. Neither
one would sell for as much if sold apart from the other, as if they
were sold together.
GEO. E. B. JACKSON.
DEPOSITION OF HORATIO N. JOSE.
Horatio N. Jose, a witness called on the part of the defendant,
having been first duly sworn, deposed as follows :
Int 1. By Chas. F. Libby, Esq. counsel for the defendant. State
your name, age, residence and occupation ?
Ans. Horatio N.Jose; 65 years; reside in Portland; occupa¬
tion, merchant.
Int 2. How long have you been connected with the Portland &
Ogdensburg Railroad, and in what capacity ?
Ans. I have been a director in the road since it was organized,
with the exception of three months while I was absent abroad.
Int 3. Are you acquainted with the general traffic of the road,
and the sources from which it derives its business ?
Ans. 1 am.
Int 4. State whether or not within your knowledge, the securi¬
ty of the Second Mortgage Bondholders has been gradually in¬
creased by improvements put upon the mountain section, and also
upon the general line of the road, since the mortgage was first
made ?
Ans. I think it has.
Int 5. State whether or not in your judgment, the value of the
128
security of the Second Mortgage bondholders would be diminished
by a sale or separation of B division from the remainder of the
road. Give your reasons for any opinion you may state ?
This question as No. 4, is objected to by the Plff. because witness
has not qualified himself to give the opinion called for.
Objected to. It calls for opinion of witness on a subject which
is of the issue and for the Court.
Ans. I have no doubt but it would be so. To make two corpo¬
rations of it would make it more expensive in its management, and
it could not but be an injury to the property. The Second Mort¬
gage applies to the whole line, and the equity of this end is worth
more than the debt. To realize thr security for the Second Mort¬
gage bondholders the road would have to be run as an entire line.
Int 6. Please state whether or not you are familiar wTith the dis¬
position of the earnings of the road which have been made since
its organization, and if so, whether or not there has been any dis¬
crimination against B division in the use of those earnings ?
Objected to by Plff. as a matter of opinion the witness has not
shown to be qualified to give.
Ans. I am familiar as far as a director can be without being an
executive officer. I have taken special pains to acquaint myself
with the subject. I have an interest to do so, as I hold some of
the stock and some of the Second Mortgage bonds. There has
been no such discrimination to my knowledge.
Int 7. State whether or not the road has been in the condition
to pay any interest on the Second Mortgage bonds since its de¬
fault of Sept., 1875, having a proper regard to the needs of the
road in the use of its earnings ?
Ans. I should say it had not.
Cross Examinat on waived.
HORATIO N. JOSE.
DEPOSITION OF SAMUEL J. ANDERSON.
Samuel J. Anderson, a witness called by the defendant having
been first duly sworn, deposed as follows :
Int 1. By C. F. Libby, Esq., of counsel for P. & 0. R. R. Co.
Give your name, age, residence and occupation ?
129
Ans. Samuel J. Anderson ; age, 59 reside in Portland ; I am
President of tlie P. & 0. R. R., and at present its Receiver.
Int 2. How long have yon been connected with the Portland
and Ogdensburg Railroad, and in what capacity ?
Ans. Since the organization of the road, January 19, 1869.
Int 3. Give a general description of the location of the road,
and state when the different portions of the line were opened to
traffic ?
Ans. Starting from Portland it runs up the valley of the Pre-
sumpscot to Lake Sabago, seventeen miles; thence across the
divide to the valley of the Saco River, about 8 miles at Steep
Falls; thence up the valley of the Saco to North Conway to Bart-
lett line, comprising what is called here the A division, about sixty
miles; thence to Upper Bartlett; thence through the Crawford
Notch of the White Mountains to Fabyans, a distance of about 29
miles from the end of the A division; from that point the road has
been located, but not built, to Dalton, a place called Scotts Mills ;
thence the road was built two miles and a third across the Connec¬
ticut river to the Eastern boundary of the State of Vermont. It
was opened to Sabago Lake Sept. 19, 1870, Steep Falls Nov. 9,
1870, West Baldwin Dec. 26, 1870, to Fryeburg June 6, 1871, to
North Conway August 10, 1871, to Upper Bartlett Aug. 5, 1873,
to Bennis Station Aug. 31, 1873, to Fabyans Aug. 7, 1875, and the
link between Scotts and Lunenburg Dec. 22, 1875.
Int 3. State generally what mortgage encumbrances exist on
road as effecting each portion ?
Ans. On 1st Nov., 1870, a mortgage of $800,000 was put on
that portion of the road extending from Portland to the Bartlett
line. Nov. 1, 1871, a mortgage of $3,300,000 upon the whole
line of the road extending from Portland to Lunenburg, the boun¬
ce O"
clary line of Vermont; of this last mortgage eight hundred thous¬
and dollars were renewed by the terms of the mortgage to take up
the $800,000 issued in 1870, whenever such change could be ef¬
fected, and have never been issued. Jan. 1, 1875, the company
together with the Essex R. R. Co. of Vermont, Montpelier & St.
Johnsbury R. R. Co., the Lamoille Valley R. R. Co., and the La¬
moille Valley Junction R. R. Co. made a mortgage of $9,500,000,
covering all these roads, for the purpose of taking up all previous
mortgages on said roads, and of completing the same. Of that
mortgage there are but $60,000 outstanding.
130
Besides these liens 011 the road there is an attachment made up¬
on that portion of the road (or claimed to be so made) situate in
town of Dal ton, in a suit in favor of Alonzo P. Carpenter of New
Hampshire, a certified copy of the writ, in which action and the
return of the officer thereon is hereto affixed, to be annexed to
this deposition. (It is marked W. H. H. Ex'r., J. P. A., No. 172,
May 31, 1884.) There are also conveyances to the Trustees of
the 2d Mortgage of some after acquired property, being the land
in which the company's office stands, dated May 15, 1882 ; also, a
portion of the yard and flats at tide water, dated April 1,1882 ; all
said property being in Portland ; and a third conveyance of land
in Deering where it is proposed to locate engine house and shops.
Int 4. What is meant by the A and B divisions in the compa¬
ny's account, and what led to that division ?
Ans. The A division was first so designated by Mr. R. Stuart
Chase, who was employed by the City to examine the accounts of
the Co. in 1876, and who designated that portion of the road which
was covered by the mortgage of 1870 as the A division, and the
rest of the line beyond as the B division, whether constructed or
not, and since then in legal proceedings connected with this case,
has been so designated.
Int 5. How has the road been operated since it has been opened
through to Lunenburg, and from what sources has been derived its
O O"
principal business?
Ans. As an entirety like any other railroad. Its largest busi¬
ness has been derived from its local traffic, both freight and pas¬
senger.
Int 6. What use has been made of the earnings of the road and
what has been the policy of the directors in the disposition of the
same ?
Ans. At the time when the road was opened its construction
was very incomplete, most of the brooks and other water courses,
as well as many of the large depressions, were spanned by cheap
wooden structures, either trestle or pile. The summits on several
parts of the road were left, causing heavy grades to be summount-
ed, and the directors have felt constrained to devote the earnings
of the road after paying the current operating expenses, to replac¬
ing those temporary structures by permanent fills, and in doing
this also to cut down the summits when practicable, and to use the
131
earth so taken to make these fills. In many places heavy stone
culverts have been put in to carry water under the fills.
Int 7. What permanent improvements have been made upon
the B division since the mortgage of 1871 was executed ?
Ans. A large amount of work has been done on that division in
widening the banks and fills, taking away the loose rock, filling the
bottoms of deep water ways with rock, putting addditional should¬
ers to embankments at an expense of not less than $6000. Long
wooden trestle at east branch of the Saco in Bartlett filled with
heavy stone at an expense of three thousand dollars. High wood¬
en trestle at Crawford Notch filled 4500 cubic yards of good mason¬
ry built to support the fill at a cost of $32,500. Long wood tres¬
tle at Fabyans filled and riprapped against the Ammonoosic River
at cost of $3000. At the northern spur of Frankenstein the ledge
rock wall round the whole face of the curve blasted away at width
of seven feet at expense of $4000. Stone pier at Dumas pool re¬
placing the wooden one. Wooden trestle at Johns river filled un¬
der drains put in on the mountain side. Deep cuts widened out,
slopes taken off which were left when road first went through, be¬
sides general widening and deepening ditches, and other mountain
work, of cost of which wTe have not the data from which to give
the cost. The entire cost of all the foregoing being somewhere
between sixty and seventy thousand dollars. These figures are not
from the books as our accounts of such work have not in the past
been so kept as to each item that its cost is now ascertainable, but
these are the best estimates which I have been able to make, aided
by the opinion and calculations of the engineer of the road.
These are permanent and strictly necessary improvements made
in addition to the ordinary road repair and renewals, and improve¬
ments of like character as to grades, culverts, etc. have been made
on this end of the line—the A division.
Int 8. What amount, if any, has been expended on B division
in replacing iron with steel rails, and wdien were such changes
made ?
Ans. There have been expended for steel rails on B division
$60,720, without reckoning cost of laying fish plates, &c. This
rail was laid a part in 1880, a part in 1881, and part in 1882, and
some in 1883.
Int 9. Please state whether or not in the disposition of the
132
earnings of the road there has been any discrimination against the
B division ?
Ans. On the contrary, if there has been any discrimination it
has been in favor of the B division, as for instance, in the matter
of steel rails, while the rails on that division were not laid, the most
of them, until after the year 1873, they were laid on the A division
mostly in 1870, yet we commenced relaying steel on the B division
as early as April, 1880, while we keep our old rails down on A di¬
vision, and did not commence laying any steel rails on A until Oct.
1882, and the total amount of the cost of steel rails on B division
has been $60,720.00, while on the A division, until the time the
receiver was appointed, the cost of all the steel rails purchased on
that $44,906.00.
We have also put long and expensive sidings into the Mills and
other places on the B division, in order to obtain and facilitate bus¬
iness of the lumbermen for the line of the road, and have made
every effort by negotiating business arrangements with other roads
connecting and at a distance, in order to obtain business for that
part of the road.
Int 10. Where in your judgment does the value of the security
of the holders of the bonds issued under the mortgage of Nov. 1,
1881, lie?
Objected to. Calls for opinion of witness on matter of issue,
which is for the Court.
Ans. In retaining the whole road as an entirety, not only for
the interchange of its own business, but for its strength thereby
secured in dealing with other corporations, thereby securing their
business, and by less expense of operating, as a single line.
Int 11. What effect in your judgment would there be on their
security in case of a sale of the B division apart from the rest of the
road ?
Same objection.
Ans. I think it would impair the value of each and thereby
lessen the value of the security. B division from its connection
with A division receives a large amount of business from A division,
and on the other hand A division is stronger from its connection
with B.
Please state whether or not in your judgment the security of
these bondholders is strengthened by the fact that they have a mort¬
gage also of the equity of the A division ?
Ans. I have no doubt that it is. A railroad having, a terminus
at tide water, where large vessels can load and unload on the
grounds of the Co. with sixty miles and over of railroad running up
the valley of two rivers, with many fine water powers developed
and undeveloped adjacent thereto, costing thirty thousand dollars
or more per mile, and whose net earnings have for years, almost
since its opening, been largely in excess of the interest on that
first mortgage bond, ought to be worth, and I have no doubt is
worth, more than the $13,000 per mile, which is the amount of
that bonded indebtedness, and this is the fact concerning the A di¬
vision.
Int 12. What has prevented the company from paying the in¬
terest on the second mortgage debt, since May 1, 1876 ?
Ans. Because we have had to use the earnings for our necessa¬
ry expenses.
Int 13. Which division of the road has proved the most profit¬
able, and to what cause is that due ?
Ans. The A division on account of its local business.
Int 14. Have you read the depositions of Win. B. Hatch and
that of John W. Dana, taken in this case, and if so, do you con¬
cur in the views of Mr. Dana as to the inaccuracies contained in
Mr. Hatch's deposition ?
Objected. Not competent for the witness to express opinion up¬
on the relative correctness of other witnesses.
Ans. I have read them and I concur with Mr. Dana.
Int 15. How much of the rolling stock owned by the road in
the year 1876 is still in use ?
Ans. To the best of my knowledge all but the engine Presump-
scot and some second hand passenger cars which were quite old,
which have since been taken to nieces and the trucks used in con-
struction of new brake bands.
SAM. J. ANDERSON.
134
EXHIBIT A. — F. S. Streeter, August 29, 1883.
Division of Passenger Fares.
Local Fare Percentage
A. 62 miles about 03.6c per mile .... 2.30 or .548 per ct.
B. 29 " " 06.5 u .... 1.90 " .452 "
Fare from Portland to Faybans is #3.50.
As now divided
Per Mile Local
A. I or 2.33 03.76c. 2.33 or .03 more than local.
B. J u 1.17 04 1.90 " .73 less "
#3.50
On the basis of percentage based on local rates it would be
Now get
A. .548 per ct. or #1.92 2.33 increase
B. .45 2 u u 1.58 1.17 increase 41c or 35 per ct.
#3.50
Fare from Portland to Lunenberg is $
As now divided
A. 6-11 or #2.18 2.30 or 12c less than local.
1.90
B. 5-11 " 1.82 1.00 2.90 " 108c " "
4.00 5.20
On the basis of percentage based on local rates it would be
Now get
A. .442 per ct. or #1.77 2.18 increase
B. .558 u " 2.23 1.82 increase 41c 224 per ct.
#4.00
i:35
Fare from Montreal to Portland is . Portland and Ogdensburg Railroad,
proportion between Lunenberg and Portland, is $3.00
As now divided
Local Fare
A. G-ll or $1.G3 $2.30 .G7e less than local.
B. 5-11 " 1.37 • 2.90 1.53 " u
$3.00
On the basis of percentage based on local rates it would be
Now get
A. .442 or $1.33 1.63 increase
B. .55 8 " 1.67 1.37 increase 30c 22 9.10 per ct.
3.00
Fare from Boston to Faybans is, via Eastern R.R., $6. Portland and Ogdensburg
Railroad proportion between Portland and Faybans is $4.50
As now divided
A. | or 3.00 2.30 .70c more than local rates
1.90
B. J " 1.50 1.00 2.90 1.40 less » »
4.50 5.20
On the basis of percentage based on local rates it should be
Now get
A. .548 per ct. or 2.47 3.00 increase
B. .45 2 " u 2.03 1.50 increase 53c. 35 3-10 per ct.
$4.50
EXHIBIT B.—F. S. Streeter, August 29, 1883.
Receipts for The Year Ending September 30, 1878.
A.
B.
Total.
A.
B.
.11 53
.11 53 pr ct.
11,591 60
Add 10 pr ct.
.68 18
1,159 16
34,262 88
Local freights
88,895 57
11,591 60
.68 18
100,487 17"
> .30 42
87,736 41
12,750 76
Foreign freights
15,991 20
34,262 88
50,254 08,
12,564 91
<< U
3,426 29
37,689 17
.31 56
.31 56
17,887 05
Local tickets
38,795 85
17,887 05
56,682 901
37,007 14
H <<
1,788 71
19,675 76
.
.51 72
)■ .40 68
.51 72
24,239 17
Foreign tickets
22,626 88
24.239 17
46,866 05,
20,202 96
il it
2,423 92
26,663 09
.55 74
1
.55 74
Mails
5,544 83
6,984 17
12,529 00
5,544 83
6,984 17
.33 33
.32 32
Express
2,000 04
999 96
3,000 00
2,000 04
999 96
Telegraph
213 36
106 56
319 92
213 36
,
106 56
News privilege
199 92
100 08
300 00
199 92
100 08
Mileage pass, cars
180 85
104 11
284 96
180 85
104 11
Repairs machine shop Ac.
58 99
58 99
58 99
174,507 49
96,275 58
270,783 07
165,709 41
105,073 66
Expenditures for the Year Ending September 30, 1878.
Taxes, state and local
Salaries and expenses general office
Insurance premiums and loss by lire
Telegraph expenses
Repairs road bed and track
Iron rails laid
Ties laid
Repairs of buildings
" " bridges
" " machine shops and machinery
Shops gen'l expenses
Repairs fences, road crossings, and signs
Removing ice and snow
Repairs locomotives
New locomotives
Repairs snow plows
Fuel engines and cars
Water and water stations (
Fuel stations and shops
Oil and waste
Switchmen watchmen flagman &c
Repairs of passenger car
Passenger damage and gi
ratuities
Salaries wages and incidentals of pass trains
A.
B.
Total.
520 60
520 60
10,083 82
4,327
00
14,410 82
674 15
270
20
944 35
191 58
191 58
21,725 00
13,593
79
35,318 79
9,230 29
649
01
9,879 30
10,645 04
2,090
04
12,735 08
2,648 46
771
04
3,419 50
2,876 57
826
11
3,702 68
200 36
98
19
298 55
294 03
146
95
440 98
633 22
401
24
1,034 46
328 54
859
57
1,188 11
6,858 41
1,877
02
8,735 43
5,333 34
2,666
66
8,000 00
9 99
6
68
16 67
18,226 32
9,918
47
28,144 79
22,948 39
12,129
50
35,077 89
304 65
60
71
365 36
376 02
11
00
387 02
1,399 82
3,926 50
596
80
1,996 62
1,286
15
5,212 65
3,303 62
1,636
27
4,939 89
790 00
129
50
919 50
7,958 48
3,975
80
11,934 28
60,349 miles at 03.95c
$2,383 68 (? )
60,349 miles at 12.74c
101,790 " " 01.53c
.32 21 pr ct.
4,327 00
270 20
191 58
13,593 79
649 01
2,090 04
771 04
861 11
401
24
859
27
1,877
02
6
68
8,282
29
60
71
11
00
596
80
1,286
15
1,557
39
129
50
3,844
03
00
o
Salaries wages and incidentals of pass stat'ns
Mileage of passenger ears
Salaries wages and incs of freight trains
" " " stations
Repairs of freight ears
New freight cars
Freight damage and gratuities
Mileage of freight cars
Rent of track
3,201 29
301 67
5,857 67
8,230 45
6,235 34
2,985 47
218 46
1,295 16
128,545 51
141,586 59
1,639,05
246 33
2,754 12
2,086 12
1,814 82
1,492 73
116 10
1,475 53
12,000 00
65,663 61
72,034 03
4,840 34
548 00
8,611 79
10,316 57
8,050 16
4,478 20
334 56
2,770 69
12,000 00
194,209 12
213,620 42
130,924 82
34,784 59
.30 51 pr ct.
89,784 miles at 01.59
1,639 05
246 33
2,627 45
2,086 12
1,427 57
116 10
1,475 53
12,000 00
63,284 30
41,7S9 36
Local freights
Foreign freights
Local tickets
Foreign tickets
Mails
Express
Telegraph
News privilege
Mileage of pass, cars
Rent of track
Taxes state and local
Salaries and expenses general office
Insurance prems. and loss by fire
Telegraph expenses
Repairs road bed and track
Iron rails laid
Ties laid
Repairs of buildings
Receipts for the Year Ending September 30, 1879.
.12 43 pr ct.
.63 78
.32 16
.58 74
<<
ti
" bridges
" machine shops and machinery
A.
B.
Total.
A.
.12 43
100,370 12
14,247 86
114,617 98-
98,945 33
.63 78
>.25 81
14,631 03
25,765 96
40,396 99.
12,054 43
.32 16
34,676 30
16,439 68
51,115 98'
33,032 33
.58 74
> .45 58
21,512 06
30,632 97
52,145 03.
18,448 76
.45 45
5,222 71
4,352 22
9,574 93
5,222 71
.33 33
2,000 04
999 96
3,000 00
2,000 04
213 36
106 56
319 92
213 36
199 92
100 08
300 00
199 92
15 25
7 62
22 87
15 25
750 00
750 00
178,S40 79
93,402 91
272,243 70
1 70,132 13
Shops general expenses
Repairs fences road crossing and signs
A.
75 11
8,610 59
1,039 96
45 00
27,029 99
5,985 34
2,320 91
2,126 43
1,760 92
150 87
235 54
787 40
Expenditures.
b.
4,211 42
323 55
12,474 76
3,851 01
1,242 62
826 60
69 09
117 73
692 21
Total.
75 11
12,822 01
1,363 51
45 00
39,504 75
5,985 34
6,171 92
3,369 05
2,587 52
219 96
353 27
1,479 61
Add 10 pr ct.
14,247 86
1,424 79
25,765 96
2,576 60
16,439 68
1,643 97
30,632 97
3,063 30
15,672 65
28,342 56
18,083 65
33,696 27
4,352 22
999 96
106 56
100 08
7 62
750 00
102,111 57
4,211 42
323 55
12,474 76
3,851 01
1,242 62
826 60
692 21
-1
Removing ice and snow
Repairs of locomotives
" " snow ploughs
Fuel engines and cars
Water and water stations
Fuel stations and shops
Oil and waste
Switchman watchmen and flagmen
Repairs of passenger cars
Passenger damage and gratuities
Salaries wages and inc passr trains
" " stations
Mileage of passenger cars
Salaries wages and incidentals frt trains
" " stations
Repairs of freight cars
Freight damages and gratuities
Mileage of freight cars
Rent of track
816,49
5,266 57
35 95
16,316 25
24,450 99
14 6'S
231 08
1,434 28
4,118 14
3,259 61
50 00
7,341 47
3,840 08
57 48
4,962 48
9,686 90
5,872 81
15 85
748 71
114,236 87
122,371 61
1,672 79
2,410 37
17 96
11,442 31
15,413 69
18 23
438 49
1,440 45
1,924 72
3,742 10
2,225 74
48 51
2,481 21
1,108 55
1,626 58
22 02
782 53
9,750 00
10,500 00
64,961 55
69,682 93
2,489 28
7,676 94
53 91
27,758 56
39,864 68
32 89
231 08
1,872 77
5,558 59
5,184 33
50 00
11,083 57
6,065 82
105 99
7,443 69
10,795 45
7,499 39
37 87
1,531 24
9,750 00
10,500 00
179,198 42
192,054 54
118,067 66
52,064 47
61,770 miles at 03.67c
61,770 " " 13.28
97,904 " " 01.56
.33 05 pr ct.
.31 98 pr ct.
92,046 " " 01.65c
1,672 79
2,266 96
17 96
8,626 69
18 23
438 49
1,440 45
1,527 30
3,663 12
2,225 74
48 51
2,380 49
1,108 55
1,518 76
. 22 02
782 53
9,750 00
61,130 76
40,980 81
00
GO
Receipts for the Year Ending September 30, 1880.
Local freights
Foreign freights
Local tickets
Foreign tickets
Mails
Express
Telegraph
News privilege
Mileage of passr cars
Mileage of freight cars
Iron rails laid (rails sold)
A.
B.
Total.
A.
B.
.11 03
.11 03 pr ct.
14,040 36
Add 10 pr ct.
1,404 04
113,240 74
14,040 36
127,281 10"
111,836 70
15,444 40
.47 58
-.20 21
.63
26,918 51
2,691 85
22,397 59
20,330 20
42,727 79
13,117 43
29,610 36
.32 91
.32 91
16,598 21
1,659 82
33,837 47
16,598 21
50,435 68"
32,177 65
18,258 03
.56 75
>.45 74
•56 7o i(
33,322 33
3,332 23
25,395 55
33,322 33
58,717 88.
22,063 32
36,654 56
.45 46
5,241 76
4,368 12
9,609 88
5,241 72
4,368 12
.33 33
2,000 04
999 96
3,000 00
2,000 04
999 96
213 36
106 56
319 92
213 36
106 56
199 92
100 08
300 00
199 92
100 08
21 64
14 56
36 20
21 64
14 56
59 87
29 94
89 81
59 87
29 94
141 12
141 12
141 12
-
202,749 06
89,910 32
292,659 38
187,072 81
105,586 57
Expenditures.
Taxes state and local
Salaries and expenses general office
Insurance premiums and loss by tire
Telegraph expenses
Repairs of road bed and track
Rails laid (steel)
Ties laid
Repairs of buildings
Repairs of bridges
Repairs of machinery &c
Shops general expense
Repairs fences road crossings and signs
Removing snow and ice
Repairs of locomotives
" " snow plows
Fuel engines and cars
Water and water stations
Fuel stations and shops
Oil and waste
Switchman watchman and flagmen
Repairs of passenger cars
Passenger, damage and gratuities
Salaries wages and incidentals passr trains
" " stations
Mileage of passenger cars
Salaries wa es and incd freight trains
" freight stations
Repairs of freight cars
Freight damages and gratuities
Mileage of freight cars
Rent of track
Deduct for rails sold (Apl act.)
a.
B.
Total
209 96
209 96
9,890 52
4,817 93
14,708 45
714 92
146 66
861 58
167 67
167 67
19,459 90
13.859 32
33,319 22
70 56
17,371 76
17,442 32
433 38
731 26
1,164 64
2,427 75
710 23
3,137 98
2,377 46
1,721 71
4,099 17
448 85
223 95
672 80
599 03
299 48
898 51
1,156 02
391 30
1,547 32
380 78
1,028 44
1,409 22
5,233 09
2,537 48
7,770 57
12 19
6 07
18 26
31,656 20
35,466 55
21,571 80
13,894 75
72 41
42 98
115 39
77 37
38 63
116 00
1,724 40
609 86
2,334 26
5,138 37
1,736 13
6,874 50
6,234 92
4,493 91
1,741 01
83 34
105 16
188 50
7,775 88
3,804 80
11,580 68
4,446 07
1,691 95
6,215 22
24 31
25 33
49 64
6,410 67
3,167 37
9,578 04
9,785 23
1,323 29
11,031 32
7,746 67
2,049 58
9,796 25
35 33
26 70
62 03
1,371 93
824 81
2,196 74
6,000 00
6,000 00
191,457 36
114,172 10
81,095 61
195,267 71
1,493 25
1,493 25
117,194 62
72,769 49
189,964 11
112,678 85
81,095 61
193,774 46
120,191 43
66,881 38
Less value of old ) 17,371 76
" estimated " ) 5,000 00
62,785 miles at 03.37c
62,785
13.72
91,698 " " 01.93
.32 68 pr ct.
.30 01 per ct.
94,482 " " 01.82c
4,817 93
146 66
167 67
13,859 32
12,371 76
731 26
710 23
1,721 71
391 30
1,028 44
2,115 85
6 07
9,131 35
42 98
38 63
609 86
1,736 13
1,769 78
105 16
3,784 57
1,691 95
25 33
2,874 37
1,323 29
1,719 57
26 70
824 81
6,000 00
69,772 68
35,813 89
W5
Keceipts for the Year Ending September 30, 1881.
B.
Local freight
Foreign freight
Local tickets
A.
109,445 02
18,912 50
42,357 76
20,951 06
.42 39
13,914 77
20,954 27
Total.
130,396 08
32,827 27
63,312 03
A.
107,349 91
10,077 97
40,262 33
.16 07 pr ct.
.63
.33 10 "
I
Add 10 pr ct.
20,951 06
2,095 11
20,681 18
2,068 12
20,954 27
2,095 43
B.
23,046 17
22,749 30
23,049 70
Foreign tickets
Mails
Express
Telegraph
News privilege
Mileage pass, cars
Mileage freight cars
Sale of hay on lot at Sebg. lake
25,756 27
37,389 50
63,145 77
5,117 91
4,264 92
9,382 83
2,543 22
1,271 57
3,814 79
213 31
106 61
319 92
199 99
100 01
300 00
62 01
51 65
113 66
404 06
214 92
■ 618 98
14 00
14 00
205,026 05
99,219 28
304,245 33
Taxes state and local
Salaries and expenses of general ollices
Insurance premiums and loss by fire
Telegraph expenses
Repairs of road bed and tracks
Steel rails laid
Iron rails laid
Ties laid
Repairs of buildings
Repairs 44 bridges
Repairs of machine shops and machinery
Shops general expenses
Repairs road crossings signs &c
Removing ice and snow
Repairs of locomotives
Repairs of snow plow
Fuel engines and cars
Water and water stations
Fuel stations and shops
Oil and waste
switchmen watchmen and flagmen
Repairs of passenger cars
Passenger damage and gratuities
Salaries wages and incidentals pass, trains
" pass, stations
Mileage passr cars
Salaries and incidentals freight trains
" freight stations
Repairs of freight cars
Freight damages and gratuities
Mileage of freight cars
Rent of track
Deduct for iron rails sold
A.
B.
354 50
10,702 26
5,371 80
1,011 77
320 03
120 00
77 47
29,757 12
12,457 16
26,228 11
126 01
1,247 92
1,147
22
4,470 12
2,122 88
958
00
872
10
377 43
155
29
194 94
97
41
994 39
2j9
72
1,133 54
1,950
13
7,909 80
137 41
5,463
87
68
70
14,322 72
9,221
64
130 62
42
28
343 09
45
52
1,653 50
568
38
5,176 29
2,030
35
4,137 13
1,589
67
21 00
10
50
7,101 38
4,024
24
3,969 97
2,631
65
138 88
115
80
7,927 69
3.932
78
10,304 67
1,183
42
8,624 62
2,134
19
203 83
5
84
396 13
171
49
6,000
00
125,111 61
89,094 76
1,038 16
124,073 45
80,094 76
Expenditures.
Total.
354 50
16,074 06
1,331 80
197 47
42,214 28
26,228 11
126 01
2,395 14
5,428 12
2,991 98
532 72
292 35
1,214 11
3,083 67
13,373 67
206 11
23,544 36
172 90
388 61
2.221 88
7,206 64
5,726 80
' 31 50
11,125 62
6,601 62
254 68
11,860 47
11,488 09
10,758 81
209 67
567 62
6,000 00
214,206 37
1,038 16
213,168 21
22,017 32
5,117 91
213 31
199 99
62 01
404 06
14 00
188,262 03
.59 21 pr ct.
Add 10 pr ct.
37,389 50
3,738 95
41,128 45
4,264 92
1,271 57
106 61
100 01
51 65
214 92
115,983 30
Less value of old 1 26,228 11
44 estimated " \ 10,000 00
58,232 miles at 05.63c
58,232 " " 09.91c
94,221 " " 01.68c
.30 50 pr ct.
.30 49 pr ct.
109,881 " 44 01.88c
140,137 25
48,124 78
5,371 80
320 03
77 47
12,457 16
16,228 11
1,147 22
958 00
872 10
219 72
1,950 13
3,278 46
68 70
6,618 59
42 28
45 52
568 38
2,030 35
1,582 91
10 50
3,393 31
2,631 65
115 80
3,616 26
1,183 42
2,065 76
5 84
171 49
6,000 00
73,030 96
42,952 34
o
141
EXHIBIT C. — F. S. Streeter, August 29, 1883.
On the basis of 60 miles of road to A div. and 31 miles to B div.
Passenger Engines.
A.
B.
Total.
1878
85,536
44,916
130,452
1879
84,594
46,232
130,826
1880
85,683
45.998
131,681
1881
87,135
42,160
129,295
1882
86,163
47,497
133,660
Freight Engines.
A.
B.
Total.
1878
40,474
19,607
60,081
1879
38,142
19,801
57,943
1880
44,500
21,119
65,619
1881
41,556
20,083
61,639
1882
58,631
25,673
84,304
Passenger Cars.
A.
B.
Total.
1878
214,274
108,810
323,084
1879
227,329
104,661
331,990
1880
225,460
98,034
323,494
1881
210,423
100,725
341,158
1882
246.102
100,245
346,347
Freight
Cars.
A.
B.
Total.
1878
109,355
95,970
505,325
1879
357,573
98,397
455,970
1880
438,700
101,007
539,707
1881
455,499
117,466
• 572,965
1882
566,874
148,141
715,015
142
On the basis of 62 miles of road to A div. and 20 miles to B div.
Passenger Engines.
A.
B.
Per cent.
Total.
1878
88,431
42,021
32 21
130,452
1879
87,587
43,239
33 05
130,826
1880
88,645
43,036
32 68
131,681
1881
89,855
39,440
30 50
129,295
1882
89,232
44,428
33 28
133,660
Freight Engines.
A.
B.
Per cent.
Total.
1878
41,753
18,328
30 51
60,831
1879
39,412
18,531
31 98
57,943
1880
45,870
19,749
30 01
65,619
1881
42,847
18,792
30 49
61,639
1882
60,292
24,012
28 49
84,304
-
-
Passenger Cars.
A.
B.
Per cent.
Total.
1878
221,294
101,790
31 49
323,084
1879
234,086
97,904
29 50
331,990
1880
231,796
91,698
28 35
323,494
1881
246,937
94,221
27 62
341,158
1882
252,561
93,786
27 08
346,347
-
Freight Cars.
.
A.
B.
Per cent.
Total.
1878
415,541
89,784
17 77
505,325
1879
363,924
92,046
20 19
455,970
1880
445,225
94,482
17 51
539,307
1881
463,084
109,881
19 18
572,965
1882
576,424
138,591
19 38
715,015
EXHIBIT D. —F. S. Streeter, August 29, 1883.
Receipts for the Year ending November 30, 1S74.
A Div. B Div.
Passengers 66,436 SI 66,436 81
Freight 98,733 78 80,733 78 18,000 00
Mail 2,497 93 2,497 93
Express 2,250 00 2,250 00
Carage 2,287 38 2,287 38
.$172,205 90 154,205 90 18,000 00
Expenditures for the Year ending November 30, 1874.
Track
28,584 19
2,000 00
Stations
14,485 54
1,000 00
Trains
16,645 13
1,000 00
Engines
5,092 93
500 00
I—i
Cars
8,463 91
1,000 00
Shop
735 78
w
Fuel
19.172 64
3,400 00
Oil and waste
2,171 43
♦
100 00
Insurance and taxes
Salaries
[l7,192 84
3,000 00
1
Incidentals
J
$112,544 39
100,544 39
12,000 00
Net earnings
59,661 51
$53,661 51
$6,000 00
000 00
000 00
,000 00
,000 00
,000 00
,000 00
,000 00
,000 00
,800 00
,000 00
,000 00
200 00
,000 00
,000 00
,000 00
Receipts for the Year ending November 30, 1875.
A.
94,370 13 67,370 13
106,997 17 82,997 17
12,849 24 10,849 24
11,933 71 9,933 71
226,150 25 171,150 25
Expenditures for the Year ending November 30, 1875.
24.883
32
13,800
18
18,516
98
8,439
29
9,474
42
905
13
22,025
28
2,100
55
2,371
35
12,718
66
6.868
27
122,103 43
104,046 82
98,103 43
73,046 82
Receipts for the Year ending November 30, 1876.
A. B.
Passengers 92,037 18 63,505 66 .31 per et. 28.531 52
Freight 127,763 37 88,156 73 .31 " 39.606 64
Mail 9.877 21 4,444 74 .31 " 5,432 47
Express 2.250 00 1,552 50 .31 u 697 50
Carage 1,051 95 725 85 .31 " 326 10
$232,979 71 158,385 48 74,594 23
Track
Stations
Trains
Engines
Cars
Shop
Fuel
Oil and waste
Insurance and taxes
Salaries
Incidentals
B C and M rent
Net earnings
Expenditures for the Year ending November 30, 1876.
Pay roll 28,864.05 30 per ct.
10
39,637 52
16,464 95
23,461 45
7,768 12
11,447 91
584 66
26,842 50
2.077 11
1,250 00
11,433 30
4.196 64
8,254 00
$79,561 55
153,418 16 112,889 48
cost
Engine miles 226.769 = 10.35c B div.
u 226,769 = 03.43c
Car a 709,666 = 01.61c
45.496 00
B. C. and M. miles
A.
152,594
Mileage
B.
53,000
19,630
.4
Engine miles 226,769 = 11.84c
•' " 226,769 = 00.91c
t.
u
add
u
miles
53.000
53.000
129,666
53,000
53,000
32-94
32-94
Total.
205,594
19,630
8.659 22
500 00 — 9,159 22
1.646 50
5,485 50
1,817 90
2,087 62
6,275 00
482 30
3,892 16
1,428 48
8,254 00
40,528 68
34,065 55
in
152,594 72,630 225,224
B div. equals 31 per ct.
Receipts for 10 Months ending September 30, 1877.
Passengers
Freight
Mail
Express
Miscellaneous
87.242 11
116.871 05
7,805 60
3,437 50
676 31
A.
52.345 27
81,809 74
3.512 52
2,303 12
453 13
.40 per ct.
.30 "
.55 u
.33
.33
$216,032 57 140,423 78
t;
bb
B.
34,896 84
35,061 31
4,293 08
1.134 38
223 18
75,608 79
Expenditures for the 10 Months ending September 30, 1877.
Pay roll 28,864.05
30 per ct.
Track
Stations
Trains
Engines
Cars
Oil and waste
Fuel
Shops
Insurance and taxes
Salaries
Car use
Incidentals
B. C. and M. rent
Net earnings
49.799 82
17.174 02
27.016 77
6.241 64
9,997 05
1.276 94
27,787 54
704 68
1,402 50
9,458 09
640 24
6,164 31
10,746 00
10
cost
Engine miles 209,283 = 12.9 B div.
'• u 209,283 = 02.84 u
Car " 708,350 = 01.41 "
Engine u 209,283 = 00.58 u
a u 209.283 = 12.63 "
add
a
$168,409 60 123,597 83
miles
53,000
53,000
128,350
53,000
53,000
32-94
tb
u
8,659 22
1,000 00-
47.622 97
16,825 95
9,659 22
1,717 40
6,837 00
1,505 20
1.809 74
307 40
6.693 90
3,219 53
217 92
2,098 46
10.746 00
44,811 77
30,797 02
Gi
EXHIBIT E. —F. S. Streeter, August 29, 1883.
Division of Earnings and Operating Expenses as made by the Portland and Ogdensburg R.R. Co.
September 12, 1870, to Deo. 31, 1871
11 months to Nov. 30, 1872
1 year '• " " 1873
<■4 44 44 44 1^74
" u " »' 1875
1876
u
u
u
u
10 months to Sept. 30, 1877
1 year
,4
44
.4
44
.4
. 4
44
.4
44
1878
1879
1880
1881
A Division.
Earnings.
123,057 40
115.484 12
144.982 26
172,205 90
226,150 25
232.979 71
216,032 57
174,507 49
178,840 79
202.749 06
205,026 05
Operating
Expenses.
65,365 44
75,123 22
95.907 28
112,544 39
122,103 43
153,418 16
168.409 60
12S,545 51
114.236 87
117,194 62
124,073 45
Net
Earnings.
57,661 96
40,360 90
49,074 98
59,661 51
104,046 82
79,561 55
390,267 72
47.622 97
45,961 98
64,603 92
85,554 44
80,952 60
324,695 91
$715,063 63
B Division.
Earnings.
52,220 97
Operating
Expenses.
58,193 32
None Allowed.
96,275 58
93,402 91
89,910 32
99,219 28
65,663 61
64,961 55
72.769 49
89,094 76
Net
Earnings.
30,611 97
28,441 36
17,140 83
10,124 52
86,318 68
$86,318 68
Division as claimed by Orators.
A Division.
B Division.
Earnings.
' Expenses.
Net
Earnings.
Earnings.
Expenses.
Net
Earnings.
September 12,1870, to Dec. 31, 1871 .
11 months to Nov. 30, 1872 . .
1 year " '* u 1873 . .
i< u u 1874 . .
1875 . .
" " '• u 1876 . .
123,057 40
115,484 12
144,982 26
154,205 90
171,150 25
158,385 48
65,365 44
75.123 22
95,907 28
100,544 39
98.103 43
112,889 48
57,661 96
40,360 90
49,074 98
53,661 51
73,046 82
45,496 00
18.000 00
55,000 00
74,594 23
12,000 00
24.000 00
40,528 68
6,000 00
31,000 00
34,065 55
319,302 17
71,065 55
10 months to Sept. 30.1877 . .
1 year " " " 1878 . .
" " " " 1879 . .
" *' 1880 . .
" '• " " 1881 . .
140,423 78
165,709 41
170,132 13
187,072 81
188,262 03
123.597 83
130,924 82
118,067 66
120,191 43
140,137 25
16,825 95
34,784 59
52,064 47
66,881 38
48,124 78
75,608 79
105,073 66
102,111 57
105,586 57
115.983 30
44,811 77
63,284 30
61,130 76
69,772 68
73,030 96
30,797 02
41,789 36
40,980 81
35,813 89
42,952 34
218,681 17
«
192,333 42
$537,983 34
$263,398 97
n<)
EXHIBIT F.—F. S. Streeter, August 29, 1883.
Cost of locomotive
Ossipee
Fryeburg
Pequaket
Carrigan
Crawford
in 1870
" 1871
" 1873
a 1874
u 1875
Cost
10,325- 00
10,750 00
14,574 30
15,000 00
10.044 54
Value
Dec 1, 1876.
5,000 00
6,000 00
6,500 00
8,000 00
8,500 00
$60,693 84 $34,000 00
Average cost
Average value Dec 1, 1876
12,138 77
6,800 00
5,338 77
Average depreciation one year ....
One years interest on average cost $12,138.77 at 6 per ct.
Depreciation and interest one year
No
Engine
Miles
run
Average Miles
per Engine
1872
1873
1874
1875
1876
5 118,100 23,620
6 147,741 24,623
7 172,202 24.600
8 176,060 22,008
8 226,769 ^ 28,346
Average miles run by one engine for one year 24,639
Average cost per mile run for deprecia¬
tion and interest for one year . . 06 6-10c
889 79
728 33
$1,618 12
Cost of passenger and baggage cars.
2 pass cars in 1870
1 bagg mail and exp " "
7 pass cars
2 baggage
2 pass
1 baggage
2 smoking
2 pass
}
1871
1873
u
1874
1875
Average cost
Average value Dec 1. 1876
Cost
2,100 00
2,425 00
15,958 30
9,500 00
2,500 00
8,225 00
9,400 00
Value
Dec 1 76.
$50,108 30 $25,700 00
2,637 27
1,352 63
$1,284 64
150
Average depreciation one year .... 256 93
One years interest on average cost $2,637.27 at 6
per ct 158 24
$415 17
No
Miles
Average Miles
Cars
run
pr Car
1872
16
173,327
10.833
1873
20
216,479
10,823
1874
21
216,772
10,324
1875
23
210,061
9,133
1876
23
" 289,666
12,594
Average miles run by one car one year . 10,741
Average cost per mile run for deprecia¬
tion and interest for one year . . .04
Cost of freight cars.
10 hay cars in 1871
20 box " u
20 flat " 1873
5 box " •'
15 " 1874
10 flat u "
Average cost
Average value Dec 1, 1876
Average depreciation one year .
• • • •
One year interest
on average cost $767.33 at 6 per ct.
No
Miles
Average Miles
Cars
run
pr Car
1872
92
233,520
2,538
1873
117
247,780
2,118
1874
142
327.103
2,306
1875
142
369,613
2,603
1876
162
420,000
2.593
Average miles run by one car one year . 2,431
Average cost per mile run for deprecia¬
tion and interest for one vear . . . 05.22c
Cost
8,184 34
16,387 83
13,615 03
4,307 50
12,382 50
6,508 81
$767 33
365 63
$401 70
80 34
46 40
$126 74
Value
Dec 1, 76.
$61,386 01 $29,250 00
151
EXHIBIT G.— F. S. Streeter, August 29, 1883.
Amount due B Diy. by A Div. for use of Equipment.
11 months ending Nov. 30, 1872
1 year
1 "
1 "
1 "
u
.4,
U
u
u
u
1873
1874
1875
1876
10 months ending Sept. 30, 1877
1 year
1 "
1 "
1 "
u
It
u
u
u
u
u
1878
1879
1880
1881
21,852 57
22,787 46
22,375 78
27,046 13
28,899 14
11 Months ending Nov. 30, 1872
Miles Miles
Locomotives 2-5 of 104,640 = 41,856 for B at .06c i
Pass cars 14-16 " 173.327 = 151,666 " " .04
Freight " 30-92 " 233,520 = 76,140 u .05
12,385 00
17,341 98
20,225 56
21,322 62
22,357 51
93,632 67
122,961 08
.$216,593 75
52,511 36
6,066 64
3,807 00
1 Year ending Nov. 30, 1873
Miles Miles
Locomotives 4-7 of 136,085 = 77,764 for B at .06c $3,724 92
Pass cars 19-21 " 216,772 = 196,118 " u .04 7,792 56
Freight" 80-142 " 327,103 = 184,320 " " .05 5,824 50
$12.385 00
$17,341 98
1 Year ending Nov. 30. 1874
Miles Miles
Locomotives 4-7 of 136.085 = 77,764 for B at .06c
Pass cars 19-21 " 216,772 = 196,118 " " .04
80-142 " 327,103 = 184,320 " " .05
Freight 1
Cr.
By miles of A div. equipment run on B
div. " estimatedv .
$4,665 84
7,844 72
9,216 00
$21,725 56
1.500 00
$20,225 56
152
1 Year ending1 Nov. 30, 1875
Miles Miles
Locomotives 5-8 of 139,705 = 87,315 for B at .06c 5,238 90
Pass cars 21-23 " 210,061 = 191,793 " u .04 7,671 72
Freight " 80-142 " 369,613 = 208,240 " " .05 10,412 00
23,322 62
Cr.
By miles of A div. equipment run on B
div. "estimated"" .... 2,000 00
$21,322 62
1 Year ending Nov. 30, 1876
Amount expended for
locomotives repairs ....
pass car
freight "
\
r • •
" f
Mileage
A.
Locomotive B.
A.
Pass cars B.
A.
Freight cars B.
Miles
152,593
53,000
21,176
210,000
79,666
370,000
50,000
Miles
B Division
Cr.
Miles
Locomotives 5-8 of 152,593 on A = 95,370 at .06c
Pass cars 21-23 " 210,000 '• " = 191,720 u .04
Freight " 100-162 " 370,000 « " = 228,400 u .05
Dr.
Miles Miles
Locomotives 3-8 of 53,000 on B 19,875 at .06c
Pass cars 2-21 u 79.666 " " 7,586 u .04
Freight u 62-162 u 50,000 " u 19,159 ^ .05
Balance due B div.
$7,768 12
11,447 91
Miles
226,769
289,666
420,000
5,722 20
7,669 20
11,420 00
1,192 50
303 44
957 95
Cost pr Mile
03.43c
01.61c
$24,811 40
2,453 89
$22,357 51
153
10 Months ending Sept. 30, 1877
Amount expended for
locomotive repairs
/ pass cars
freight u
u
44
} *
6,241 64
9,997 05
Cost pr Mile
01.41c
Mileage
Locomotive B.
A.
Pass cars B.
Freight cars B.
Miles
142,927
53,000
13,356
210,000
78,350
370,000
50,000
Miles
209,283
288,350
420,000
Miles
B Div.
Miles
Locomotives 5-8 of 142,927 on A 89,330 at .06e
Pass cars 19-21 u 210,000 u u 190,000 u .04
Freight " 100-163 " 370,000 " " 227,000 u .05
Miles
Locomotives 3-8 • of 53,000 on B
Pass cars 2-21 " 78,350 u "
Freight " 63-163 " 50,000 " "
Dr.
Miles
19,875 at ,06c
7,462 " .04
19,325 " .05
Balance due B div.
5,359 80
7,600 00
11,350 00
1,192 50
298 48
966 25
$24,309 80
2,457 23
$21,852 57
1 Year ending Sept. 30, 1878
Amount expended for Cost pr Mile
locomotive repairs . . . 8,375 43 03.95c
pass car a ... 4,939 83 01.53
frt u . . . 8,050 16 01.59
fuel 28.144 79 12.74
154
Mileage
A.
Locomotives B.
Shifting .
Ballasting
A.
Pass cars B.
A.
Freight 44 B.
Miles
130,184
60,349
15,120
15,259
221,414
101,790
415,541
89,784
Miles
Miles
B Div.
Or.
Miles
Locomotives 6-9 of 130,184 on A = 86,790 at .06c
Pass cars 19-21 44 221,294 '• 44 = 200,218 44 .04
Frt 44 101-163 44 415,541 44 44 = 257,482 44 .05
Dr.
Miles Miles
Locomotives 3-9 of 60,349 on B 20,115 at .06c
Pass cars 2-21 44 101;790 44 44 9,694 44 .04
Frt 44 62-163 44 89,784 44 44 34,162 44 .05
Bal due B div.
220,912
323,204
505,325
$5,207 40
8,008 72
12,874 10
1,206 90
387 76
1,708 10
26,090 22
3,302 76
$22,787 46
1 Year ending Sept. 30, 1879
Amount expended for
locomotive repairs
pass car
frt 44
u
i.
7,676 94
5,184 33
7,499 39
Cost pr Mile
03.67c
01.56
01.64
fuel
A.
Locomotives B.
Shifting .
Ballasting
A.
Pass cars B.
Freight 44 B.
Mileage
Miles
126,999
61,770
9,984
10,315
234,086
97,904
363.924
92,046
27,758 56
Miles
13.28
209,068
331,990
455,970
ir>r>
Locomotives 6-9
Pass cars 19-21
Fit "
B Div.
Or.
Miles Miles
of 126,999 on A 84,666 at .06c
" 234,086 " " 211,793 u .04
122-185 " 363,924 " " 239,993 " .05
Locomotives
Pass cars
3-9
2-21
Dr.
Miles Miles
of 61,770 on B 20,589 at .06c
" 97,904 « « 9,324 " .04
Fit
4.
63-185 " 92,046 " " 31,345 " .05
Balance due B div.
5,079 96
8,471 72
11,999 65
1,235 34
372 96
1,567 25
$25,551 33
3,175 55
$22,375 78
1 Year ending- Sept. 30, 1880
Amount expended for
locomotive repairs
pass car
frt "
fuel
A.
Locomotives B.
Shifting .
Ballasting
Pass cars B.
Freight u B.
U
U
Mileage
B Div.
134.515
62,785
12,620
20,755
231,796
91,698
445,225
94,482
Miles
Locomotives 6-9 of 134,515 on A
Pass cars 16-18 " 231,796 "
Frt " 174-237 " 445,225 u "
Or.
Miles
89,676 at .06c
206,018 « .04
326,874 " .05
7,770 57
6,234 92
9,796 25
31.656 20
230.675
323,494
539,707
5,380 56
8,211 92
16,343 70
Cost pr. Mile
03.37c
01.93
01.81
13.72
29,966 28
15G
Dr.
Miles Miles
Locomotives 3-9 62,785 on B = 20,928 at .06c 1,255 68
Pass cars 2-8 91,698 '4 « = 10,188 " .04 407 52
Frt " 63-237 94,482 « " = 25,137 " .05 1,256 85
2,920 05
Balance due B div. $27,046 13
1 Year ending Sept. 30, 1881
Amount expended for
locomotive repairs
pass cars
frt u
fuel
Mileage
A.
Locomotives B.
Shifting
Ballasting
A.
B.
A.
B.
Pass cars
Frt
u
132,702
58,232
27,757
19,005
246,937
94,221
463,084
109,881
Locomotives 6-9
Pass cars 16-18
Frt
B Div.
Cr.
Miles Miles
of 132,702 on A 88,468 at .06c
" 246,937 " " 219,499 k' .04
204-267 " 463.084 •' " 353,817 " .05
Miles
Locomotives 3-9 of 58,232 on B
Pass cars 2-18 u 94,221 u u
Frt " 63-267 " 109,881 " "
Dr.
Miles
19,410 at .06c
10,470 " .04
25,927 '* .05
13,373 67
5,726 80
10,758 81
23,544 36
237,696
341,158
572,965
5,308 08
8,779 96
17,690 85
1,164 60
418 80
1,296 35
Cost pr Mile
05.63c
01.68
01.88
09.91
31,778 89
2,879 75
Balance due B div.
$28,899 14
157
130,452 miles of passenger engines in 1878, and
323,084 44 u 44 ears 44 44
Equals 2 48-100 miles of passenger cars to one mile of passenger engine.
Miles of Pass. Engine Pass. Car A. B.
1871
59,533
0
at 2 48-100 =
Miles
147,641
147,641
1872
69,890
tt it
173,327
173,327
1873
87,290
tt it
216,479
216,479
1874
87,408
t. t.
216,772
216,772
1875
84,702
it it
210,061
210,061
1876
116,801
averaged
289,666
210,000
79,666
1877
116,270
it
288.350
210,000
78,350
15,120
60,081
75,201 miles of freight engines in 1878, and
505,325 miles of freight cars in 1878, equals 6 72-100 miles of
freight cars to one mile
of freight engine.
Miles of Freight Engines.
Frt. Cars.
A.
B.
1871
27,507
at 6 72-100
Miles
184,847
184.847
1872
34,750
t. it
233,520
233,520
1873
36,872
it it
247,780
247,780
1874
48,676
. t i.
327,103
327,103
1875
55,002
. t it
369,613
369,613
1876
88,793
averaged
420,000
370,000
50,000
1877
79,657
it
420,000
370,000
50,000
I
Passenger
Freight
Mixed
Ballasting
Construc¬
tion
Total
Sept 12 1870 to
Dee 31 1871
53.578
9,642
23,820
28,481
115,5211
•
Nov 30 1872
63,400
15 280
25,960
13,460
118,100
'• 1873
78,464
10.394
35,304
6,069
17.510
147,741
" '• 1874
79.006
23.470
33,609
36,117
162.202
From annual report
" 1875
76.058
29.070
34,577
36.355
176 060
" " 1876
110,802
70,796
23,999
21,172
226,769
116.270
79,657
209,283
Pass Frt
to Sept 30 1877
133,377
89,002
Shifting
13,356
235,735
Nov and Dec out 17,107 9,345
" " 1878
130,452
60. 81
15,120
15,259
220,9121
•' " 1879
130,826
57,943
9.984
10,315
209,068
♦ .
•' 1880
131,681
65.619
12,620
20,755
230,675
- From Mr. Dana's statement
•• 1881
129.295
61.639
27.757
19,005
237,696
" - 1882
133,660
84,304
28,951
12.402
259,317
Mixed miles divided into frt and pass on the basis of \ pass and
% freight —
Dee 31 1871
Nov 30 1872
u 1873
u 1874
•' 1875
Passenger
4 Mixed Total
53,578 X 5.955
63,400 X 6,490
78.400 X 8,826
79,006 X 8,402
76.058 X 8.644
59.533
69.890
87,290
87.408
84,702
1876 110,802 X 5,999 = 116.801
Freight
9,642
15.280
10.394
23,470
29,070
70,796
5 Mixed
X 17.865
X 19,470
X 26,478
X 25,206
X 25,932
X 17,947
Total
27,507
34,750
36.872
48,676
55,002
88,793
Passenger
Dec 31 1871
Nov 30 1872
" " 1873
1874
a •• 1875
'• " 1876
10 mo Se])t 30 1877
u
u
u
1878
u 1879
" 1880
a 1881
u
1882
A.
59,533
69,890
87.290
87,408
84.702
81,801
81.270
88,431
85.536
87,587
84,594
88.645
85.683
89.855
87,135
89.232
86,163
B.
35.000
35.000
42,021
44,916
43,239
46.232
43,036
45.998
39,440
42.160
44.428
47,497
Total
59,533
69.890
87.290
87.408
84,702
116,801
116.270
130,452
130,826
131,681
129,295
133,660
A.
27,507
34,750
36.872
48.676
55.002
70,793
61.657
41,753
40,474
39,412
38,142
45.870
44,500
42,847
41,556
60,292
58.631
Freight
B.
18,000
18,000
18.328
19.607
18,531
19.801
19,749
21,119
18,792
20,083
24.012
25,673
Total Frt
and Pass
Miles
Shifting
Ballast¬
ing
Con¬
structing
Total
Total
27,507
34,750
36,872
48,676
55,002
88,793
79.657
87.040
104,640
124,162
136,084
139,704
205,594
195,927
28,841
13,460
6.069
17,510
36,117
36.355
21,172
13.356
115,521
118,100
147.741
162.202
176,060
226,769
209,283
60,081
190,533
15,120
15,259
220,912
57,943
188,769
9,984
10,315
209,068
65,619
197,300
12,620
20,755
230,675
61,639
190,934
27,757
19,005
237,696
84.304
217,964
28.951
12,402
259,317
Total
Freight and Passenger
Miles
A.
B.
Total
1876
152.594
53.000
205,594
1877
142.927
53,000
195,927
1878
130,184
60.349
190.533
1879
126.999
61,770
188,769
1880
134,515
62.785
197,300
1881
132,702
58,232
190,934
1882
149,524
68,440
217,964
EXHIBIT H. — F. S. Streeter, August 29, 1883.
Portland and Ogdensburg Railroad.
Xo. of Locomotives, Passenger and Baggage and Freight Cars on hand each year.
Dec 31
1871
Nov 30
1872
Nov 30
1873
Nov 30
1874
Nov 30
• 1875
Nov 30
1870
A
B Total
A
B
Total
A
B
Total
A
B
Total
A
B
Total
A
B
Total
Locomotives ....
3
3
2
5
3
3
6
3
4
7
3
5
8
3
5
8 '
Passenger and baggage .
2
2
14
16
2
18
20
2
19
21
2
21
23
2
21
23
Freight box and hay
20
20
30
50
20
35
55
20
50
70
20
50
70
20
70
90
•' platform
40
40
—
40
40
20
60
40
30
70
40
30
70
40
30
70
other (vans)
2
2
—'
2
2
—
2
2
—
2
2
—
2
2
—
2
•
Nov. 30
1877
Sept 30
1878
Sept 30
1879
Sept 30
1880
Sept 30
1881
A
B Total
A
B
Total
A
B
Total
A
B
Total
A
B
Total
Locomotives ....
3
5 8
3
6
9
3
6
9
3
6
9
3
6
9
Passenger and baggage .
2
19 21
2
19
21
2
19
21
2
16
18
2
16
18
Freight box and hay
20
70 90
20
70
90
20
70
90
20
90 110
20
90 110
platform
40
30 70
40
30
70
40
52
92
40
82
122
40 112 152
'• other (vans)
3
— 3
3
—
3
3
—
3
3
2
5
3
2
5
]<;i
EXHIBIT I.— F. S. Streeteb, August 29, 1883.
Portland and Ogdensburg Railroad Co.
General Balance Sheets December 1, 1S76, and September 30, 1881.
A Division.
December 1, 187G. Per Report of R Stewart Chase
Dr.
Construction 1,750,525 10
Equipment 81,197 94
Discount and commissions 144,107 94
Miscellaneous 10,795 01
Coupons on bonds of Nov 1, 1870 2S0,G53 56
Other interest 94,735 75
Or.
Capital stock paid in 1,052,125 52
Bonds of Nov 1, 1870 800,000 00
Net earnings fco December 1, 187G . 385,024 82
2.362,015 36
2,237,150 34
124,865 02
Payment to Montreal Sorel and Chambly R.R. 20,000 00
1,185 65
Bills receivable good 35,693 49
bad 8,098 76
('ash on hand 2,936 10 44,977 90
Fuel on hand 15,327 00 18,263 10
Less
Balance of acts payable on ledger 17.749 11
Pay rolls unpaid 26,188 58
Variations of bills payable ac 1,433 68
63,241 00
45,371 37
17,869 63
Balance of expenditures over receipts Dec 1, 1876 162,724 35
For 5 Years to Sept 30, 1881.
From General Books, Annual Reports and Answer.
Dr.
Coupons on bonds of Nov 1, 1870 144,000 00
u prior to Dec 1, 1876 74,S80 00
t. u
218,880 09
Other interest floating debt &c. 40,257 26
8259.137 26
3 (32
Net earnings 5 years to Sept 30, 1881
Cr.
Notes payable B
Bills receivable
Error in earnings
Interest not paid
Profit and loss diff
Credit Balance.
103,570 91
20,102 46
44,977 90
30,230 09
390,367 72
385,024 82
83,469 45
14,747 81
5,342 90
2,273 85
6,658 04
112,492 05
Due from agts. and Co"
Balance of acts
Cash and fuel on hand
Debit Balance.
51,745 84
45,371 37
35,713 07
49,746 23
18,263 10
9,658 30
31,483 13
92,887 27
Balance of receipts over expenditures for 5 years
Balance of expenditures over receipts to Sept 30 1881
324,695 91
65.558 65
19,604 78
B Division.
December 1, 1876. Per Report of R Stewart Chase
Dr.
Construction 1,287,951 33
Equipment 203,298 20
Discount and commission 103,383 22
Miscellaneous 12,770 66
Coupons on bonds of Nov 1, 1871
City of Portland 110,490 00
Others 35,741 59
146,231 "59
Interest on Daltons loan 1,447 35
](>:>
Cr.
Bonds of November 1,1871 City of Portland 1,350,000 00
Others 231,600 00
1,581,600 00
Dalton loan 51,041 88
1,632,641 88
Balance of expenditures o^er receipts Dec 1, 76 $122,440 47
For 5 Years to Sept 1, 1881.
From General Books, Annual Report and Answer.
Dr.
Construction expended " 38,381 02
Equipment " cost" 50,442 01
Air brakes u 577 78
Interest on bonds of Nov 1, 71 365 25
a u a 41 u 3,259 50
Paid on ac Dalton loan 15,312 54
'• interest " '• 10,787 44
" " on equipment 2,747 64
Balance due on ice cars bought and charged out prior
to Dec 1, 1876. 4,585 00
Balance oil engine Crawford, bought and charged out
prior to Dec. 1, 1876 2,000 00
128,458 18
Discount and commissions on bonds of November 1871 464,351 27
(>r.
Bonds of Nov 1, 71 sold 686,400 00
Net earnings for 5 yrs as allowed 86,318 68
Notes payable ac equipment 20,102 46
592,809 45
792,821 14
Balance of receipts over expenditures for 5 years 200,011 69
Balance of receipts over expenditures to Sept 30, 1881 $77,571 22
Amount of net earnings claimed to Dec 1, 76 $71,065 55
Amt of net earnings for 5 years to Sept 30,
81 as allowed 86,318 68
Amount claimed 192,333 42
106,014 74
Amount charged in error as above on ice cars 4,585 00
engine Crawford 2,000 00
177,080 29
254.651 51
6.585 00
Amount claimed as due B div. Sept 30, 1881
$261,236 51
164
MORTGAGE,
Dated Nov. 1, 1870.
KNOW ALL MEN BY THESE PRESENTS,
That the Portland an Ogdensburg Railroad Company, a corpora¬
tion established by the Legislature of the State of Maine, and au¬
thorized and empowered by the legislature of New Hampshire to
construct and extend its railroad across said state of New Hamp¬
shire, subject to the laws thereof relating to railroads, and having
its principal office for the transaction of business, at Portland, in
the County of Cumberland, and State of Maine, for the purpose of
elfecting the several trusts and securities hereinafter set forth, exe¬
cuted and declared, designed to enable and provide for the more
speedy construction and equipment of the railroad of said company,
and in consideration of one dollars paid by the grantees and trus¬
tees hereinafter named, doth hereby give, grant, bargain, sell and
convey to Woodbury Davis, Samuel E. Spring and Weston F. Milli-
ken, all of Portland, aforesaid, gentlemen, their survivors and suc¬
cessors, as hereinafter designated, all that part of the railroad of
said company, extending and to be extended from the terminus in
Portland, in the State of Maine, to Bartlett, in the State of New
Hampshire, located and to be located within said limits, called the
Portland and Ogdensburg Railroad, including all the rights of way
and lands taken and held, or to be hereafter taken and held within
said limits, in the States of Maine and New Hampshire, by said
company, for the purpose of its road, and all the franchise of said
company to build, maintain and operate said railroad, from said
Portland to said Bartlett, granted or hereafter to be granted by
said States of Maine and New Hampshire, and all the rails and
superstructure of said railroad between said limits of Portland and
Bartlett, together with all cars, engines and other movable furni¬
ture, machinery and equipments of said road, and all other per¬
sonal property of said company, appertaining to and connected
with the customary use and working of said railroad, and the
machinery thereof.
To have and to hold the premises with all the privileges and
appurtenances thereof, and belonging thereto, to them, the said
grantees, their survivors and successors, as joint tenants and not
as tenants in common, upon the agreement, conditions and trusts
hereinafter set forth as follows :
1G5
Whereas, the stockholders of said Portland and Ogdensburg
Railroad Company, on the twenty-first day of October, in the year
of our Lord one thousand eight hundred and seventy, at a meeting
of said stockholders, duly notified and holden, voted, to authorize
the directors of said company to issue bonds of the company to
an amount not exceeding eight hundred thousand dollars, payable
in not exceeding thirty years, with interest semi-annually, at the
rate of six per cent, per annum, principal and interest to be paid
in gold, and to secure the same by a mortgage of the road located
and to be located in Portland in the State of Maine, and thence to
Bartlett in the State of New Hampshire, together with all the real
estate of said company lying in said Portland and thence to Bart¬
lett, with the track and franchise appertaining to so much of said
company's railroad, and with all engines, and rolling stock and
other personal property belonging to said company.
And whereas, the directors of said company, on the same twen¬
ty-first day of October, in the year of the Lord one thousand and
eight hundred and seventy, voted to issue the bonds of said com¬
pany to the amount of eight hundred thousand dollars, authorized
by a vote of the stockholders, to wit: five hundred bonds for one
thousand dollars each, and six hundred bonds for five hundred
dollars each, the bonds of each of said denominations to be num¬
bered consecutively, beginning with number one of each series, all
dated November 1st, 1870, and payable on tne first day of July,
in the year of the Lord one thousand nine hundred (1900), with
semi-annual interest coupons annexed, for interest on the first day
of January and the first day of July in each year, principal and
interest payable at Boston, in gold, and signed by the President
and Treasurer of said company.
Now if the said company shall well, and truly pay the interest
which shall from time to time accrue and become payable upon any
and all of the bonds of said company, issued under and in accord¬
ance with said votes, and shall well and truly pay the principal of
the same, at the maturity, thereof, then this deed shall be void,
otherwise shall be and remain in full force.
It is agreed that the said company may continue in possession of
and manage the railroad and property aforesaid, so long as it shall
punctually pay the interest and principal aforesaid according to the
tenor of said bonds, and may from time to time renew and replace
16G
any of the personal property hereby conveyed,, by other property
of like character and situated in like manner for the purposes of
said railroad according to the charter of said company.
This conveyance is made upon the following further trusts and
agreements, that is to say :
First. Whenever a vacancy shall occur in the number of trus¬
tees hereby appointed, or of their successors, by the death, resig¬
nation, permanent disability, or removal from this State of any
one of them, whether before or after his acceptance of the trust
hereof, the surviving and remaining trustees shall immediately take
measures to prove the fact of such vacancy to the Honorable Na¬
than Clifford, or to his successor for the time being, in the office of
the justice of the supreme court of the United States, allotted to
the first judicial circuit, and procure the said justice to nominate
and appoint in writing, some suitable person, an inhabitant of the
State of Maine, to supply such vacancy, and to certify such nomi¬
nation and appointment upon the back of this deed, and the said
surviving and remaining trustees shall make such nomination and
appointment known to the directors of said company without un¬
reasonable delay ; and any person so appointed, upon his accep¬
tance of said trust, shall succeed to and have all the powers of the
trustee in whose place he shall be appointed.
And as often as any new trustee or trustees hereof shall be ap¬
pointed, all the estate, property and interest which shall be for the
time being holden upon the trusts hereof, shall thereupon be so
conveyed, assigned and transferred by the acting trustee or trus¬
tees, as that the same shall vest and be holden jointly by all said
trustees, to and for the same trusts, and upon the same conditions,
and subject to the same powers and provisions as are herein con¬
tained and declared of and concerning the premises, and the trus¬
tees named in this instrument, so far as the same trusts, conditions,
power and provisions shall then be subsisting and taking effect.
Second. Whenever the trustees shall have entered upon and
taken possession of the property hereby conveyed for breach of
condition or for the purposes of foreclosure, if before any foreclos¬
ure is consummated, the said company shall have fully satisfied and
performed all the conditions, for breach of which the entry was
made, and paid all the expenses incurred by the trustees under
such entry and possession, or the same shall have been satisfied and
107
paid out of the income, rents and profits received by said trustees
from working and managing said railroad and other property, the
said trustees shall thereupon relinquish to the company all control
of said railroad, franchise and other property, and any time for
which the same shall have been held by said trustees prior to any
such relinquishment, shall not be taken or reckoned as effecting or
leading to a foreclosure of this mortgage.
Third. Whenever the said trustees and their successors shall be
in possession of said railroad and other property, they shall grant
all such reasonable inspection of their accounts, records and pro¬
ceedings, as may at any time be required by any committee of the
directors or of the stockholders of said company.
And the said trustees shall in no event be personally liable for
each other, but any one of them is to be accountable and liable
only for his own acts, misdoings and neglect.
And the said company hereby covenants and agrees to and with
said trustees that upon the demand of said trustees, or their suc¬
cessors, it will make any other and further assurance and convey¬
ance to said trustees, or their successors, of said railroad and other
property held and used in connection therewith, as the same shall
be.from time to time extended, enlarged and completed from its
point of beginning in Portland aforesaid to Bartlett aforesaid, so as
to make the whole of the road within said limits under the charter
of said company, and the franchise pertaining thereto, and the oth¬
er property aforesaid subject to and liable for the payment of the
bonds and interest herein before described.
In witness whereof the said Portland and Ogdensburg Railroad
Company has caused these presents to be subscribed by Samuel J.
Anderson, President of said Company, and the seal of said Com¬
pany to be hereunto affixed, and the said Woodbury Davis, Samuel
E. Spring and Weston F. Milliken, in testimony of their acceptance
of the grants and trusts hereby made, created and declared, have
hereunto severally set their hands and seals, this first day of No¬
vember, in the year of our Lord one thousand eight hundred and
seventy.
Signed, sealed and delivered, and duly stamped, on two sheets,
in presence of
Nathan Webb, William L. Putnam.
Portland and Ogdensburg Railroad Company, by
Sam. J. Anderson, President. [seal]
168
Countersigned by Aug. E. Stevens, Treasurer.
Woodbury Davis, [seal]
S. E. Spring, [seal]
Weston F. Milliken, [seal]
STATE OF MAINE.
Cumberland, ss, Nov. 1, 1870.
Personally appeared Samuel J. Anderson, above named, and ac¬
knowledged the foregoing instrument by him signed in behalf of
the Portland and Ogdensburg Railroad Company to be the free act
and deed of said Company. Before me,
Nathan Webb, Justice of the Peace.
[United States]
\ Revenue
[ Stamps.
Cumberland ss. Registry of Deeds.
Received November 1st, 1870, at 5 h., 40 m., p. m., and record¬
ed in book 381, page 262.
Attest, Eben Leach, Register.
Oxford County, Western District. Registry of Deeds.
Received November 21, i87i, at 2 h. p. m., and recorded book 53? Page 35^.
Attest, Asa Charles, Treasurer.
State of New Hampshire. Office op Secretary of State.
Received and recorded December 23, 1871, in vol. 1, "Railroad Records,"
pages 445 to 450, inclusive.
Attest, John H. Goodale, Secretary of State.
State of New Hampshire.
Carroll County. Registry of Deeds.
Received Dec. 20, 1875, at 5 h. p. m., said day and accorded according to
the original received, book 66, pages 461, 462, 463 and 464.
Attest, Sanborn B. Carter, Register.
A true copy
Attest A. A. Dennett,
Clerk of the Supreme Judicial Could for Cumberland County,
State of Maine.
160
OPINION—LOWELL, J.
FILED FEB. 21, 1882.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
MERCANTILE TRUST CO.
vs.
PORTLAND & OGDENSBURG R. R. CO.
Lowell, J. This case has been argued upon demurrer to the
bill. The facts alleged are that the Portland & Ogdensburg Rail¬
road Company exists by the authority of the States of Maine and
New Hampshire, that in 1870 it mortgaged that part of its line
which extends from Portland in Maine to Bartlett in New Hamp¬
shire, to secure bonds for $800,000 ; that in 1871 it mortgaged the
whole line from Portland to the Western line of New Hampshire
together with its rolling stock owned or which might thereafter be
acquired, to G. F. Emery and two others, as trustees, to secure
bonds for $3,000,000, and issued the bonds to the amount of 1,900,-
000, of which the plaintiff holds 80,000 and sues for itself and oth¬
ers in like interest who may choose to come in and contribute to
the expenses.
This mortgage is the first from Bartlett to the Western line of
the State, and the second from Portland to Bartlett. The bill goes
on to allege that interest has been paid regularly on the debt se¬
cured by the first mortgage, but that the payments have been
made, in part, out of earnings which should have been devoted to
the payment of the debt secured by the second mortgage and no
interest has been paid on that debt since May 1876. It prays that
an account may be taken of the earnings received for the different
parts of the road ; for payment of the amount due the plaintiff or
in default for a foreclosure ; for a receiver, and for other relief.
I consider that cause of demurrer to be well assigned which ob¬
jects that the trustees of the second mortgage under which the
plaintiff's claim have not been made parties. They may have good
reasons to give why a receiver should not be appointed, to show
why they have not taken possession of the road if they have not;
170
to see that all bondholders, are protected, etc. The reasons for
their being parties are many and familiar. It seems that they live
in Maine ; but the Statute of 1875 cl37 § 8, provides for summon¬
ing into the Circuit Court all such absent parties when there is
property within the jurisdiction upon which a lien is claimed. It
is argued that Judge Wheeler decided in Brooks v. Vermont C. R.
R. Co.; 14 Blatch. 463, that the bondholder could proceed without
the trustees ; but what he said was (p 466) that the bondholders
could proceed, whether the trustees would or not, by making them
defendants. In Mercantile Trust Co. vs. Lamoille Valley R. R. Co.
16 Blatchford 324, the trustees were parties defendant and the
Court merely decided, so far as the present case is concerned, that
the bill need not allege a request to the trustees to foreclose, and
their refusal.
Again, it is said that the mortgage imposes no duties upon the
trustees and invests them with no rights, but gives them merely
the dry legal title. But the bill alleges that the mortgage was
made by virtue of the laws of Maine and New Hampshire ; and the
laws of Maine have a chapter devoted to this subject which relieves
the parties from the necessity of providing therefor in each mort-
gage.
The Demurrer is sustained. The plaintiffs may amend within
60 days.
171
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
IN EQUITY.
Mercantile Trust Company,
vs.
The Portland and Ogdenshurg Railroad Co. et cds.
Statement and Schedule of the Receipts and disbursements on account
of the B Division of the Portland and Ogdenshurg R. R.; relating to the
subject named in such schedule as taken from the Report of R. Stewart
Chase, referred to in the defendant's answer, and which the parties to this
suit, agree to be prima facie evidence of the facts stated below and that
such statement may be filed by the Orators in this suit and used as evi¬
dence in the case. The Defendants to use so many of the tabular state¬
ments in said report and the schedules annexed as they may choose
with like effect to be filed as evidence in their behalf in this case.
Receipts to Dec. 1, 1876.
Bonds of November 1, 1871,
Dalton Loan,
$1,581,600.00
51,041.88
1,632,641.88
Disbursements to Dec. 1, 1876.
Construction,
Equipment,
Discount and Commissions,
Miscellaneous,
Coupons of Bonds of Nov. 1, 1871,
Interest on Dalton Loan,
$1,287,951.33
203,298.20
103,383.22
12,770.66
146,231.59
1,447.35—1,755,082.35
Excess of Disbursements over Receipts
$122,440.47
GUY C. NOBLE, sol. for Orators.
T. H. HASKELL, solicitor for Defendants.
172
STIPULATION AS TO EVIDENCE.
FILED MAY 30, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
Mercantile Trust Company,
vs.
TJie Portland and Ogdensburg Railroad Co. et als.
It is agreed that Nathan Webb, Samuel E. Spring and Weston F.
Milliken, trustees and respondents in the above cause, may file as
evidence in the above cause in lieu of the originals, copies duly
certified by the clerk of said Circuit Court of the following papers,
to wit:
1. Mortgage from the Portland and Ogdensburg Railroad Co.
to Samuel E. Spring, Weston F. Milliken and George F. Emery,
dated November 1st, A. D. 1871.
2. Appointment by Nathan Clifford, justice of the Supreme
Court, of Nathan Webb, dated October 12th, A. D. 1877.
3. Deed from George F. Emery to Nathan Webb, dated March
25th, A. D. 1884.
4. Mortgage of personal property from the Portland and Og¬
densburg Railroad Co. to Samuel E. Spring, Nathan Webb and
Weston F. Milliken, dated February 25th, A. D. 1884.
It is further agreed that said trustees, instead of filing the origi¬
nals, may file copies duly certified by the clerk of the Supreme
Judicial Court of the State of Maine, of the following papers, viz:
Mortgage from the Portland and Ogdensburg Railroad Co. to
Woodbury Davis, Samuel E. Spring and Weston F. Milliken, dated
November 1st, A. D. 1870.
Deed from Weston F. Milliken and Samuel E. Spring to Philip
.Henry Brown, dated December 22, A. D. 1876.
And it is further agreed that all the foregoing copies shall have
the same effect as evidence in this cause as the originals.
It is further agreed that it shall not be necessary to prove the
173
execution or the authority to execute any of the foregoing instru¬
ments.
May 24, 1884.
NOBLE & SMITH, for Orator.
W. L. PUTNAM, for Trustees.
CHARLES F. LIBBY, Atfy for P. & 0. E. E.
WILLIAM H. LOONEY, Atfy for City of Portland.
STIPULATION AS TO EVIDENCE.
FILED JUNE 2, 1884.
CIRCUIT COURT OF THE UNITED STATES.
district of new hampshire.
Mercantile Trust Company,
vs.
The Portland and Ogdenshurg Eailroad Co. et als.
It is agreed that the Portland and Ogdenshurg Railroad com¬
pany, respondents in the above cause, may file as evidence in the
above cause, in lieu of the originals, copies duly certified by the
clerk of said Circuit Court, of the following papers, to wit:
1st. Joint consolidated mortgage from—
The Portland and Ogdensburg R. R. Co.
The Essex County R. R. Co.
The Montpelier and St. Johnsbury R. R. Co.
The Lamoille Valley R. R. Co. and
The Lamoille Valley Junction R. R. Co.
to Israel Washburne, Jr., Philip Henry Brown and Luke P. Poland,
trustees, dated January 1st, 1875, of the railways and other prop¬
erty of said companies.
2nd. Quit claim deed from Portland and Ogdensburg Railroad
company to Samuel E. Spring, Weston F. Milliken, and Nathan
Webb, trustees, dated April 1, 1882, of real estate in Portland for
use as freight grounds.
174
3d. Quit claim deed from Portland and Ogdensburg Railroad
company to Samuel E. Spring, Weston F. Milliken and Nathan
Webb, trustees, dated May 5, 1882, of real estate in Portland for
an office building for the said company.
And it is further agreed that all the foregoing copies shall have
the same effect as evidence in this cause as the originals.
It is further agreed that it shall not be necessary to prove the
execution or the authority to execute any of the foregoing instru¬
ments.
It is further agreed that the letter of Hon. Nathan Webb to
C. F. Libby, dated May 28, 1884, marked W. II. Hackett, Ex'r,
No. 2, May 31, 1884, may be filed by the Portland and Ogdens¬
burg R. R. Co. in this case, and used as evidence in place of the
deposition of Judge Webb, subject to any objection as to relevancy
or competency as to matters and manner therein stated, the same
as if stated in form of deposition in answer to enquiries. The
above instruments are subject to any objection as to competency.
MAY 31, 1884.
CHARLES F. LIBBY, for P. & O. P. Pi. Co.
J. W. FELLOWS, for Mer. Trust Co.
STIPULATION AS TO EVIDENCE.
FILED JUNE 5, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
Mercantile Trust Company,
vs.
The Portland and Ogdensburg Railroad Co. et als.
It is agreed that the city of Portland is and has been the owner
of bonds and coupons as alleged in its petition filed June 3, 1884.
It is also agreed that all statutes passed by the legislature of
Maine and New Hampshire relative to Portland and Ogdensburg
175
R. R. Co. are put in the case as evidence, but need not be printed.
It is likewise agreed that said Mercantile Trust Co. is and has
been owner of bonds and coupons as alleged in said bill.
W. L. PUTNAM, Solicitor.
GUY C. NOBLE, Solicitor.
STIPULATION AS TO EVIDENCE.
FILED JULY 16, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
IN EQUITY.
Mercantile Trust Company,
vs.
The Portland and Ogdensburg llailroad Co. et cds.
It is stipulated and agreed that Philip H. Brown was duly ap¬
pointed on the 18th day of December, 1876, a trustee under the
mortgage of November 1, 1870, in place of Woodbury Davis, de¬
ceased, and that Nathan Webb was on the 17th day of October,
1877, duly appointed a trustee under the mortgage of November
1st, 1871, in place of George F. Emery, removed from the State,
and that conveyances were duly made to them as trustees, and no
evidence of said appointments or conveyance need be printed. It
is further stipulated and agreed that the Mercantile Trust Com¬
pany, owners of the bonds as set forth in the bill of complaint, is
a corporation existing under the laws of the State of New Yrork,
and that Exhibit B (charter of said company) annexed to deposi¬
tion of Louis Fitzgerald, need not be printed.
CHARLES F. LIBBY, Solicitor for P. & 0. R. R. Co.
J. W. FELLOWS, Solicitor for Mercantile Trust Co.
176
MOTION FOR THE APPOINTMENT OF A RECEIVER.
FILED MARCH 20, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
IN EQUITY.
Mercantile Trust Company,
vs.
The Portland and Ogdenshurg Railroad Co. et als.
To the Honorable Judges of the said Circuit Court:
And now come Weston F. Milliken, Nathan Webb and Samuel E.
Spring, defendants in said case, and say that since the}' filed their Answer
in said cause, they have filed, on the nineteenth day of March, A. D. 1884
in the Supreme Judicial Court for Cumberland County, State of Maine, a
Bill in Equity, of which a copy is hereto attached and made a part of
this motion as though recited in full, that the matters alleged in said Bill
in Equity, they are informed and believe, are true, and that they have
filed in said cause a motion for the appointment of a Receiver, a copy of
which is annexed hereto.
Wherefore they pray your Honors that, so far as concern said Rail¬
way and its appurtenances in the State of New Hampshire, your Honors
will confirm whatever action may be taken by the said Supreme Judicial
Court of the State of Maine, with reference to the appointment of a Re¬
ceiver, and with reference to the rights and duties and authority of such
Receiver, if appointed, and that your Honors will cooperate with said
Supreme Judicial Court in its action with reference to the subject matter
of said motion for the appointment of such Receiver, and with reference
to all its action as to such Receiver.
By their Solicitor,
WILLIAM L. PUTNAM.
177
[copy.]
r™T.f^TF.!liAIfaE')- SUPREME JUDICIAL COURT.
cumberland, ss. j
Weston F. Milliken et cits., In Equity, vs. The Portland & Ogdens-
burg Railroad Company, et cds.
And now come the Complainants in said Bill and state that they are
informed and believe the allegations of said Bill are true; and therefore
they pray your Honors to appoint a Receiver of the railway of the Port¬
land & Ogdensburg Railroad Company, for and within the States of
Maine and New Hampshire, and of all its rolling stock and other appur¬
tenances, and of all the other assets of said Corporation, with all the
rights and duties as more particularly set out in their Bill in said case ;
and especially that said Receiver may be authorized, among other things,
forthwith to lay the whole of said road with steel rails, and to repair and
to build such bridges as need to be repaired and rebuilt, and to issue for
the purposes of his Receivership certificates of indebtedness in amount
sufficient therefor, and which shall be a first lien upon said railway and
all its appurtenances, of such tenor and sums and with such rate of inter¬
est and payable within such time or times as may be authorized by your
Plonors. By their Solicitor,
WILLIAM L. PUTNAM.
To the Honorable Justices of the Supreme Judicial Court of the
State of Maine :
Weston F. Milliken, Nathan Webb and Samuel E. Spring, all of
Portland, in the County of Cumberland and State of Maine, bring
this Bill against the Portland & Ogdensburg Railroad Company, a
corporation corporated by the statutes of the State of Maine, and
having its established and principal place of business at Portland,
in said County of Cumberland, and having always held its Stock¬
holders' meetings at said Portland, Philip Henry Brown, of said
ciry of Portland, and Luke P. Poland, of St. Johnsbury, in the
State of Vermont.
And thereupon humbly complaining showeth unto your Honors,
that said Portland & Ogdensburg Railroad Company, by various
178
statutes of the State of Maine, passed before the giving of the
mortgages hereinafter set out, was incorporated for building and
was authorized to build a line of railway with its appurtenances
from Portland aforesaid to the eastern boundary of the State of
Vermont, said line of railway and its appurtenances to be a part
of a through line from said Portland to the West.
It was further authorized to lease, purchase and contract for the
operation of other railways in the State of Vermont and elsewhere,
as a part of said through lin^from Portland to the West, and to
make other contracts for the purpose of originating and maintain¬
ing a through business from said city of Portland to the West, as
aforesaid ; that afterwards in pursuance of the authority aforesaid
and for the purpose, among other things, of establishing through
lines as aforesaid, said Portland & Ogdensburg Railroad Company
constructed portions of its line from Portland to the east line of
the State of Vermont as follows, to wit: from Portland to the east¬
erly line of the town of Bartlett, in the State of New Hampshire,
a distance of sixty-one and forty-four hundredths miles, which por¬
tion of said road was substantially completed and equipped before
the giving of the mortgage to your Orators hereinafter set forth,
and of which portion fifty-one miles is in the State of Maine and
the remainder within the State of New Hampshire, and afterwards,
from the proceeds of the bonds secured by the mortgage to your
Orators hereinafter set out and from other moneys, constructed in
continuation of the line aforesaid from said Bartlett to the Fabyan
House or Fabyan Place, in the State of New Hampshire, twenty-
seven and fifty-hundredths miles, and afterwards from Scott's Mills,
in the town of Dal ton, in said State of New Hampshire, to the
eastern line of the State of Vermont, a distance of two and thirty-
two hundredths miles, being in the whole a distance of ninety-one
and twenty-six hundredths miles; that between said Fabyan Place
and said Scott's Mills there still exists a gap in the line of said rail¬
road company as located, the precise length of which is not known
to your Orators, and which by an arrangement between said corpo¬
ration and the Boston, Concord & Montreal Railroad Company, is
operated over that portion of the line of said Boston, Concord &
Montreal Railroad Company, which extends from said Fabyan Place
to said Scott's Mills, so that at the present time by virtue of said
contract and connection with said Boston, Concord & Montreal Rail-
179
road Company, said Portland & Ogdensburg Railroad Company is
now operating a continuous line from said Portland to the eastern
line of the State of Vermont, and there connects with other lines
extending westward, by means of which said Portland & Ogdens¬
burg Railroad Company is enabled to transact and does transact in
connection as aforesaid with other corporations a continuous busi¬
ness from said Portland into the State of Vermont and to Canada
and the West, which continuous business was the principal induce¬
ment to the construction of said railroad and its maintenance, and
is essential to the profitable operation thereof and to the interests
of all persons and corporations holding stocks, bonds and other
securities of all kinds of said Portland & Ogdensburg Railroad
Company, so that the breaking up of said continuous through busi¬
ness, or of said line owned and operated by said Portland & Og¬
densburg Railroad Company, would be a great injury and detri¬
ment to each and every class of bondholders and other creditors of
said Portland and Ogdensburg Railroad Company as well as to the
stockholders thereof; and would materially impair the value of the
property and the franchises of said railroad company, upon which
said bondholders and creditors must rely for satisfaction of their
respective claims; that said portions of said Portland & Ogdens¬
burg Railroad were so far completed as to be in operation, and
were all in operation in the year A. D. 1877, and have been oper¬
ated by said Portland & Ogdensburg Railroad Company from said
year A. D. 1877 to the present time; that on the first day of No¬
vember, A. D. 1870, said Portland & Ogdensburg Railroad Com¬
pany issued its bonds to the amount of eight hundred thousand
dollars, and secured the same by a mortgage, bearing that date, of
so much of its line as extends from Portland to the town of Bart-
lett aforesaid, and of the franchises, equipment and other appurte¬
nances thereof, a copy of which mortgage is hereto attached and
made a part of this bill as though set out therein, and which mort¬
gage was originally made to Woodbury Davis, said Samuel E.
Spring and said Weston F. Milliken ; that thereafterwards said
Woodbury Davis deceased, and said Philip H. Brown, in accordance
with the terms of said mortgage was duly appointed his successor
as trustee under said mortgage, and thereafterwards proper deeds
to the said Brown were duly executed to constitute him successor
in said trust. ,
180
And thereafterwards, on the first day of November, in the year
of the Lord 1871, said Portland & Ogdensburg Railroad Company
executed the mortgage to said Weston F. Milliken, said Samuel E.
Spring and one George F. Emery, a copy of which mortgage is
hereto attached and made a part of this bill as though set out
therein in full, which George F. Emery afterwards resigned the
trust under said mortgage, and said Nathan Webb was thereupon
duly appointed his successor in said trust, and accepted said ap¬
pointment, a copy of which appointment is hereto attached and
made a part of this bill as though set out in full.
And your Orators further complaining showeth unto your Hon¬
ors that by sundry statutes of the State of New Hampshire the
extension and construction of the railway of said Portland & Og¬
densburg Railroad Company into and through the State of New
Hampshire was duly authorized and ratified, and the mortgages
aforesaid, and all bonds issued under the same, were also duly au¬
thorized and ratified, and said Portland & Ogdensburg Railroad
Company was further duly authorized, so far as concerned the State
of New Hampshire, to arrange for and maintain all through lines
and through business aforesaid ; and all the purposes for which it
was chartered and constructed in accordance with the statutes
aforesaid of the State of Maine, were fully authorized and con¬
firmed, so far as concerned the State of New Hampshire, by the
statutes of the said State of New Hampshire aforesaid, and all do¬
ings aforesaid of said Portland & Ogdensburg Company and your
Orators, and the rights of your Orators under the mortgage afore¬
said, have been and are fully authorized, ratified and established by
the said statutes of the State of New Hampshire ; but the said
Corporation, nevertheless, is and always has been, under and by
virtue of the statutes of New Hampshire, a corporation domiciled
in the State of Maine, authorized to perform its functions within
said State of New Hampshire, has never become a corporation dom¬
iciled in said State of New Hampshire, nor in any way, so far as
relates to its line of railway and appurtenances within the State of
New Hampshire or so far as concerns its duties, rights and obliga¬
tions within the State of New Hampshire, been segregated from its
corporate existence under the laws of the State of Maine, and has
always held, enjoyed and performed all the same, in pursuance of
its original charters granted by the State of Maine, but by comity,
181
license and authorization of and from the statutes aforesaid of the
State of New Hampshire, so that the courts of the State of Maine,
so far as concerns said Portland & Ogdensburg Railroad Company,
have full and entire jurisdiction over the whole railway of the same
and all its appurtenances whether in Maine and New Hampshire.
And your Orators further complaining showeth unto your Hon¬
ors that in pursuance of the mortgage aforesaid, bearing date the
said first of November, A. D. 1871, said corporation issued its ne¬
gotiable bonds according to the terms of said mortgage with cou¬
pons attached to each of said bonds, providing for the payment of
interest semi-annually from and after said first day of November
at the rate of six per cent, per anuum ; that the principal amount
of the bonds so issued were twenty-five hundred thousand dollars,
or nearly that amount; that of such bonds the city of Portland
aforesaid acquired for full value, and still retains the ownership of
bonds to the amount of thirteen hundred and fifty thousand dollars
of principal; that the remainder of said twenty-five hundred thou¬
sand dollars of said bonds or nearly the remainder thereof have
been sold and issued by said corporation at various times to sun¬
dry persons for a full and valuable consideration in accordance with
the terms of said mortgage, and are now owned by sundry persons
many of whom are to your Orators unknown, being and residing
in the States of Maine and New York and other States to your Or¬
ators unknown; that all or nearly all said bonds so issued as afore¬
said are now outstanding, are obligatory against said corporation
and were properly issued in accordance with the terms of said mort¬
gage, and that said mortgage is held by your Orators as security
for said outstanding bonds and coupons attached thereto; that the
said corporation paid or otherwise took up all the coupons attached
to said bonds to and until the first day of November, in the year of
our Lord, 1876; that since said first day of November, A. D. 1876,
said corporation has been unable to pay the coupons attached to
said bonds and is in default of the payment thereof, and all or
nearly all the same remained unpaid and dishonored; that said
corporation has paid and discharged all coupons and other sums
secured by said mortgage dated the first day of November, A. D.
1870, heretofore coming due, and is in no wise in default under
said last named mortgage.
And your Orators further complaining showeth unto your Hon-
182
ors that by the terms "of said mortgage to your Orators dated said
first day of November, A. D. 1871, your Orators, by reason of the
default aforesaid, were entitled to take possession of all the rail¬
way, franchises and other property covered by said mortgage, and
operate the same until all defaults were made good by said Port¬
land & Ogdensburg Railroad Company.
And your Orators say that heretofore your Orators have not de¬
sired to take possession of and operate said line of railways and
appurtenances because your Orators upon enquiry ascertained that
the said line of railways was being honestly and economically op¬
erated by said Portland & Ogdensburg Railroad Company, and all
the earnings of said railway which were not required for operating
and maintaining the same, were honestly applied by said Portland
& Ogdensburg Railroad Company to the payment of the interest
secured by said prior mortgage or to the necessary improvement of
said line of railway ; so that the earnings of said railway were hon¬
estly and economically appropriated precisely the same as they
would necessarily have been applied by your Orators, if your Or¬
ators had been in possession of said railway and operating the same,
and as your Orators were informed and believe, were so applied
with more economy and to better advantage than could have been
done by your Orators, if your Orators had been in possession of
and operating said railway ; and furthermore the majority, and in¬
deed nearly all the holders of the bonds secured by said mort¬
gage to your Orators, requested your Orators to aliow said Railway
Company to remain in possession as aforesaid, so long as the same
could be done with advantage to the property covered by the mort¬
gage aforesaid.
And your Orators further complaining showeth unto your Hon¬
ors, that said railway, at the time when said Portland & Ogdens¬
burg Railroad Company defaulted upon the coupons as aforesaid,
had not been brought up, either in its road-bed, stations, equip¬
ment or other appurtenances to the condition of what is known as
a first-class railway, or to such a condition as would enable it to do
satisfactorily and economically the increasing business of said
Portland & Ogdensburg Railroad Company ; that since said default
as aforesaid the business of said Portland & Ogdensburg Railroad
Company over the railroad aforesaid, has been constantly and con¬
tinuously increasing, requiring constantly and continuously im-
183
provements upon its road-bed, and increase of its equipment; that
as already herein stated, all the earnings of said Railway Company
not required for operating expenses, or for the payment of interest
secured by said prior mortgage, have been applied to the improve¬
ment of said road-bed and its appurtenances, and to increasing the
equipment required as aforesaid; that your Orators are informed
and believe that in addition to the application of the earnings
aforesaid, in order to meet the requirements of said increasing busi¬
ness said corporation has been compelled to anticipate its earnings
and has therefore become embarrassed as hereinafter set out; that
in the manner as aforesaid, the construction and equipment account
of said Portland & Ogdensburg Railroad Company has been in¬
creased since the thirtieth day of September in the year of our
Lord 1880, to the present time, as your Orators are informed and
believe, to the amount of more than one hundred and fifty thou¬
sand dollars, and that the same was so increased before said thir¬
tieth day of September, 1880, by a very large amount to your
Orators unknown.
That as your Orators are informed and believe by the means
aforesaid, between the first day of January A. D. 1877, and the
present time, said railway, its equipment and franchises had been
very largely improved and are now in a safe and substantial condi¬
tion except as hereinafter set out; and that by reason of the im¬
provements aforesaid, and notwithstanding the earnings of the road
have been appropriated by the Portland & Ogdensburg Railroad
Company honestly and economically as already hereinbefore set
out, inasmuch as said Corporation had a very limited credit and no
means of improving said road-bed and appurtenances or of enlarg¬
ing said equipment except its earnings as aforesaid and the use of
its very limited credit aforesaid, said Portland & Ogdensburg Rail¬
road Company has become embarrassed in the manner hereinafter
set out, and now finds itself unable to provide the repairs and im¬
provements immediately demanded as hereinafter set out.
And your Orators humbly complaining further showeth unto your
Honors that your Orators have lately ascertained and been inform¬
ed that the part of said railway extending from or near White
Rock, in the town of Gorham, to Hiram, in the State of Maine, a
distance of about twenty-three miles is in an extremely dangerous
condition and is not safe for the running of trains by reason of the
184
rails being insufficient; that this condition of the rails has come on
rapidly and unexpectedly since the opening of winter; that it will
be impossible for the business of said railroad to be done over that
portion of the road the coming summer season unless the same is
at once substantially relaid with new iron or steel rails; that not
more than one-fifth of the present iron upon that portion of the
road is suitable for relaying ; that economy demands that when the
same is relaid, it should be relaid throughout with steel rails; that
while said Portland & Ogdensburg Railroad Company had expected
that during the present spring and coming summer some portion of
said twenty-three miles would require new rails, it had not expect¬
ed that the same would need to be substantially relaid, as now
proves to be the fact; that the deterioration and present dangerous
condition of the iron rails aforesaid was wholly unexpected, and
could not have been foreseen and provided against but is due to
some inherent property of the material of said rails not manifest to
any inspection, so that said Portland & Ogdensburg Railroad Com¬
pany has made no pecuniary provision for the emergency which ex¬
ists by reason of said rapid deterioration of said iron and is wholly
unable, by any means or credit which it has or may obtain, to re¬
place the same or so much thereof as will be necessary for the safe
operation of said road ; that in addition thereto at least ten miles
of new iron or steel rails will be required the coming summer upon
the portion of the railway line between Bartlett line and the said
Fabyan Place, so called, in order that the same may be safely op¬
erated ; that indeed economy requires that the whole railway from
the Bartlett line to the said Fabyan Place, except about five miles
of steel, should be relaid the coming summer, but that said Port¬
land & Ogdensburg Railroad Company have no means, resources or
credit by which the same or even said ten miles can be so relaid ;
that as your Orators are informed and believe, the cost of relaying
with steel rails the portion of said road from White Rock to Hiram
as aforesaid, after deducting what would be received for the old
iron, will be exceeding forty thousand dollars, and a like relaying
of said ten miles between said Bartlett line and said Fabyan Place
the coming season, after deducting the proceeds of material sold,
will be at least twenty thousand dollars, and said Portland and Og-v
densburg Railroad Company has no means, resources or credit ena¬
bling it to provide either of said sums.
185
And your Orators further complaining showeth unto your Hon¬
ors, they are informed and believe, that in order to put the bridges
of said railroad in good and safe condition for operation the com¬
ing summer season at least fifteen thousand dollars in money will
be required, and that said Portland & Ogdensburg Railroad Com¬
pany have no resources nor credit to enable it to furnish the amount
aforesaid and provide for its current liabilities and arrears as here¬
inafter set out.
And your Orators further complaining showeth unto your Hon¬
ors, they are informed and believe, that in the present condition of
the railway, aforesaid the same cannot be economically nor safely
operated, and further in view of the increased and increasing busi¬
ness of said Portland & Ogdensburg Railroad Company, which has
required and still requires an increase in the number and weight
of its trains, cars and locomotives, that economy and prudent man¬
agement require that all parts of said railway now laid with iron
rails, should be immediately relaid with steel rails; and that fur¬
ther, on account of the extraordinary low prices at which steel rails
can now be purchased, the present is a suitable time for so relaying
the same, and probably the same can not for a long series of years
be so relaid as cheaply as during the coming season ; that the cost
of so relaying, including the cost of relaying the portions herein¬
before already described, after deducting the proceeds to be real¬
ized from the sale of old material would be about
thousand dollars.
And your Orators further complaining showeth unto your Hon¬
ors, that, aside from the bridges and the rails as aforesaid, they are
informed and believe said railway and its appurtenances are in a
good condition and as already hereinbefore stated very much im¬
proved since the first day of January, A. D. 1877, aforesaid ; and
your Orators are informed, believe and allege, that for the reasons
hereinbefore set out, said Portland & Ogdensburg Railroad Com¬
pany has been unable to meet its current liabilities, and that now
there remains due and unpaid to the employees of said corporation
about two months' pay, being in all about twenty thousand dollars,
and current bills for supplies to the amount of from forty thousand
to fifty thousand dollars, which is aside from and in addition to bills
payable for rolling stock secured by liens upon said rolling stock;
that the said corporation is obliged to meet the instalments on ac-
186
count of said rolling stock from time to time as the same come due,
or lose said rolling stock; that from the earnings of said railroad
which may reasonably be anticipated during the next four months,
not more can be realized than will be sufficient to pay the current
expenses of said months and the past and accruing pay rolls and
instalments which must be paid upon the notes for the rolling stock
aforesaid ; that during the said next four months said corporation
will not be able to realize from its earnings as aforesaid, anything
towards the payment of said forty thousand or fifty thousand dol¬
lars of liabilities for current expenses, nor anything for the purpose
of relaying its track or improving its bridges as aforesaid ; that
said corporation has no credit nor any resources except the earn¬
ings aforesaid, for any of the purposes aforesaid ; that if the said
corporation is allowed to remain in possession of and operate said
railway, the same will be to the injury and great damage of the
property and business of the line, and that said corporation will be
wholly unable to safely operate said road during the coming season,
and perform its duties to the public according to its charter and the
laws of the State; and that the attempt to run and operate said
railroad, and to conduct the large and increasing business offering
to said road, even if the same could be done with safety in the
present impaired and defective condition of said railroad would be
only at so greatly increased cost as to waste the profits that would
Otherwise accrue from the same ; and that for the reasons aforesaid
this condition of things was wholly unforeseen by your Orators,
and has come upon said corporation suddenly and contrary to its
just expectations and in consequence of the matters hereinbefore
set out.
And your Orators further complaining showeth unto your Hon¬
ors, that said Portland & Ogdensburg Railroad Company in connec¬
tion with the Essex County Railroad Company, the Montpelier &
St. Johnsbury Railroad Company, the Lamoille Valley Railroad
Company and the Lamoille Valley Junction Railroad Company, all
corporations created by the statutes of Vermont and having their
places of business in said Vermont, did on or about the first day
of January, in the year of our Lord 1875, arrange to issue certain
joint bonds to the amount of nine million five hundred thousand
dollars, and did actually issue certain of said joint bonds, of which
now about sixty thousand dollars are outstanding, as your Orators
187
are informed and believe ; that in order to secure said joint bonds,
all said corporations executed their mortgage dated the first day of
January, 1875, to said Philip Henry Brown, Israel Washburn, Jr.,
of Portland aforesaid, and Luke P. Poland of St. Johnsbury, in the
State of Vermont, a copy of which mortgage is hereto attached ;
that said Israel Washburn, Jr., has deceased ; that all of said bonds
were issued for the benefit of said Railroad Corporations other than
said Portland & Ogdensburg Railroad Company, and that said other
Railroad Corporations are holden, as between them and the Port¬
land & Ogdensburg Railroad Company, to pay all of said bonds;
and that all of said other Railroad Corporations are beyond the ju¬
risdiction of this Court, and have no interest which requires that
they, or either of them, should be made parties to this suit.
And your Orators further complaining showeth unto your Hon¬
ors, that by reason of the premises said Portland & Ogdensburg
Railroad Company ought not to be allowed to remain longer in
possession and operate said railway and its appurtenances, and that
your Orators as trustees under said mortgage dated November first,
A. D. 1871, should take possession of and operate the same for the
benefit of the holders of the bonds and coupons secured by said
mortgage, until the said mortgage is properly and duly foreclosed
and the holders of the bonds secured thereby are duly organized
as a corporation as provided by the statutes of the State of Maine;
and that on the fourteenth day of the current month, your Orators
were requested by the Mayor of the city of Portland, in his official
capacity, to take some action in the premises.
And your Orators further represent to your Honors, that your
Orators are without the moneys necessary to make the repairs and
improvements aforesaid, or even to make the repairs which are
necessary for the safe operation of said railway in season for the
coming summer business thereof; that said summer business is far
in excess of the business of any other portion of the year, and at
least two-thirds of the net earnings thereof are made between the
first day of June and the first day of October in each year; that
in consequence thereof your Orators need the assistance and direc¬
tion of your Honors with reference to the performance of their du¬
ties as trustees in the premises.
And inasmuch as your Orators are remediless, except according to
the course of the proceedings in equity; to the end therefore,that
I88
said Portland & Ogdensburg Railroad Company under its seal, and
said Philip Henry Brown and said Luke P. Poland, each, over his
signature but without oath may make full, true and direct answers
to all the foregoing, and that your Orators may be finally decreed
to have possession of the said railway and its appurtenances and of
all property covered by said mortgage to them, and that mean¬
while, especially pending this bill, a Receiver may be appointed of
said railway within the States of .Maine and New Hampshire, and
of all its appurtenances and of all the other assets of said corpora¬
tion, and that such Receiver may be authorized to operate said rail¬
way and its appurtenances, and to receive the earnings thereof and
collect all sums now due said corporation, and from said earnings
and other sums collected by him, pay all pay rolls in arrears, the
current unpaid liabilities of said Portland & Ogdensburg Railroad
Company, the interest upon said prior mortgage bonds, the instal¬
ments coming due upon said rolling stock and equipment, all traffic
balances and all sums coming due on mortgages of lands acquired
by said company, all in such order and under such conditions as
your Honors may from time to time determine, and may be also
authorized to make such repairs to said railway and its appurte¬
nances and improvements by relaying steel rails for iron, and such
other improvements as to your Honors may from time to time seem
proper, and especially all such repairs as are needed for the safe
and economical operation of said railway, and that, so far as the
earnings will not be immediately sufficient therefor, such Receiver
may be authorized to issue and negotiate certificates of indebted¬
ness for the purposes aforesaid to such an amount and of such ten¬
or, and negotiate the same, as your Honors may from time to time
direct, and that such Receiver may be authorized to continue ex¬
isting contracts for through business with car and railway lines,
modify the same or make new ones as your Honors may from time
to time direct; and that your Orators may have such other rem¬
edy as may seem meet and proper to your Honors.
May it please your Honors to grant unto your Orators your
most gracious writs of subpoena and of injunction and such other
writs as may be pertinent to the case of your Orators, directed to
said Portland & Ogdensburg Railroad Company, said Philip Henry
Brown and said Luke P. Poland, in the form required by law and
189
the rules of this Court; and as in duty bound, your Orators will
ever pray.
SAMUEL E. SPRING.
NATHAN WEBB.
WESTON F. MILLIKEN, by George Millihen, his Attorney,
thereto specially authorized.
WILLIAM L. PUTNAM, Solicitor.
State of Maine.
county of Cumberland : March 18th, 1884.
Then and there personally appeared Nathan Webb, one of the
complainants who signed the foregoing Bill in Equity, and made
oath that he has heard read the above Bill in Equity and knows
the contents thereof, and that the same is true, except as to those
matters stated to be upon his information and belief, and to those
matters he believes to be true. Before me,
WM. M. SARGENT, Justice of the Peace.
ORDER OF NOTICES UPON TRUSTEES.
FILED MAY 28, 1884.
ORDER OF COURT.
On the foregoing bill it is ordered that a copy thereof be served on
said Samuel E. Spring, Weston F. Milliken and Nathan Webb, personal¬
ly, and that they and each of them answer or demur to the same on or
before the first Monday of June next, being the fifth day of June next, at
the rules in the Clerk's office in Portsmouth. Said service to be made
twenty days before said first Monday of June. Otherwise the Court will
proceed in the cause as if they had been served with process in their dis¬
trict, and Complainant will be at liberty to take the bill pro confesso.
By the Court,
WILLIAM H. HACKETT, Clerk.
April 20, 1882.
190
I, William H. Hackett depose and say that I made service upon the
before named Sam'l E. Spring, Weston F. Milliken and Nathan Webb, by
giving in hand to each of them a copy of the foregoing bill and the order
thereon attended by W. H. Hackett the Clerk of the Circuit Court of the
U. S. for the District of New Hampshire, and under the seal of said Court.
Said service was made as follows : by giving in hand on the twenty-sev¬
enth day of April, A. D. 1882, such copies to Hon. Nathan Webb, and on
the same day a like copy to Samuel E. Spring, and on the fifth day of
May, 1882, I served a like copy by giving the same in hand to Weston F.
Miiliken. WILLIAM H. HACKETT.
District of N. H. ss., May 28, 1882.
Personally appeared William H. Hackett and made oath to the fore¬
going affidavit of service. Before me,
JOHN LOWELL, Circuit Judge.
LETTER OF NATHAN WEBB.
Portland, Me., May 28, 1884.
C. F. Libbey, Esq., Solicitor of P. & 0. R. R. Co.,
Dear Sir :—I regret, while acknowledging the receipt of your note
asking me to attend (at Portsmouth or Portland? you do not say which)
on Friday next, to the taking of testimony in the suit Mercantile Trust
Co. v. P. &. 0. R. R. Co., to be compelled to say I cannot comply with
your request. My plans are completed to leave Portland to-morrow morn¬
ing for Bangor, where I shall be holding a term of the District Court for
an indefinite time, how long cannot be judged till I see the amount of
business to be done. It would seriously derange my preparation to post¬
pone my departure till after the time you mention. If you can send in¬
terrogatories I will give my deposition as soon as they are received, or I
will notify you on my return from Bangor, and attend before the exami¬
ner at Portsmouth at the earliest practicable time. But I confess I know
of nothing relating to the case which the parties on both sides might not
without prejudice admit. After I was substituted as Trustee in place of
Geo. F. Emery, Esq., there was never a time to my knowledge when there
was any difference of opinion among the Trustees, or bondholders, on the
expediency of leaving the management of the property to the corporation,
until the action of the Mercantile Trust Co., and so far as I ever was in¬
formed, they the owners of some $80,000, out of $2,500,000 of the bonds
stood alone. After they commenced their bill, a very large majority in
191
interest of the bondholders signed a written expression of preference ad¬
dressed to the Trustees, which unless I am at fault in memory is mention¬
ed in the answer of the Trustees in the suit.
There was at one time some movement by the parties under the first
mortgage from Portland to Bartlett, and I then deemed it quite import¬
ant that those proceedings should be adjusted without being pushed to
extremities, especially for the interest of the second mortgagees.
I have never doubted the value of the portion of property covered by
the first mortgage, to the second mortgage bondholders, both in its intrin¬
sic value above the prior incumbrance, and in its relations to the portion
of the property above the lower line of Bartlett, and in this judgment,
the Trustees associated with me, I am assured, concur fully. Besides, I
have always considered that we as Trustees had no authority to divide the
security placed in our charge for the protection of bondholders, or to dis¬
regard one portion for the benefit of another, but whatever might be the
complications in dealing with the security that we must treat it as a
whole, and overcome any difficulties so as to make the whole available to
the utmost.
I know of no improvident, imprudent or wasteful details of manage¬
ment 011 the part of the corporation, and but for the unexpected and sud¬
den failure of the rail, making needful repairs and renewals beyond their
means to provide for, I should have doubted whether there would be any
gain in taking the control of the property out of their hands. But under
the actual circumstances, it became clear that the corporation could not
meet the exigency, and we Trustees felt called upon, to take steps that
would lead to the protection of the whole property, hence the application
for a Receiver, to the Courts in this State and New Hampshire, which ap¬
plication let me say, was not delayed an hour after the Trustees ascertain¬
ed the condition of the property, and was not incited by the bondholders.
In my opinion the interest of the bondholders whom I in part repre¬
sent, as much and as directly demand repairs upon the lower portion of
the line as upon the upper, and any neglect on our part of efforts to se¬
cure means for such repairs would be without excuse.
, If I appear to testify in this case at any time I can only reaffirm the
facts and opinions here stated; the facts are well known to everybody
who has tried to keep informed, and the opinions whether sound or un¬
sound are those I entertain, and must until better advised, maintain.
Yours respectfully,
NATHAN WEBB.
P. S. Mr. W. F. Milliken and I have sent a letter to Hon. W. L. Put¬
nam, our counsel, expressing our views on some of the points above men¬
tioned, and I beg leave to refer you to that for perhaps a clearer expres¬
sion of those views. I have not alluded to the state of the title by mort-
192
gage to the terminal facilities in this city, of which the company has
given special deeds to the Trustees under the second mortgage, and by
which deeds, it may be found we have actually the first lien. But you
understand the state of the conveyances of that property, and will $t once
perceive that the more complete our title to it, the more reason for detail¬
ing with it in connection with all the rest of our security.
PETITION FOR AMENDMENT TO BILL.
FILED JUNE 4, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
To the Honorable Judges of the Circuit Court of the United
States for the District of New Hampshire:
The city of Portland, having by intervention become a party
complainant in said cause, hereby respectfully represents:
That the mortgage from said Portland and Ogdensburg Railroad
Company to Samuel E. Spring, Weston F. Milliken and George F.
Emery, dated the first day of November, A. D. 1871, set out in
complainants' bill embraces, as appears by said mortgage, the whole
line of said railroad, both in the States of Maine and New Hamp¬
shire, extending from the tide-waters at the city of Portland to the
east line of the State of Vermont; and did convey to said Spring,
Milliken and Emery, their survivors and successors, all the railroad
of said company, located and to be located at Portland in the State
of Maine, and thence to its termination at the western boundary
line of the State of New Hampshire, and all the rolling stock, sta¬
tions, fixtures and franchises thereof and appurtenances thereto be¬
longing, owned or held at the date of said mortgage, or which have
since been acquired by said company ; also all and any rights which
have been acquired by said company by lease or contract of any
railroad forming part of a through line from Portland aforesaid to
the city of Ogdensburg in the State of New York; and all lands
193
and tenements then taken or held or which have since been taken
or held by said company, for the purpose of said railroad : and all
the franchises of said railroad corporation, to build, maintain and
operate said railroad in and from said Portland to the said western
line of New Hampshire, theretofore granted or since granted by
the said States of Maine and New Hampshire ; and all the cars,
engines and other movable furniture, machinery and equipments of
said railroad, and all other personal property of said railroad apper¬
taining to and connected with the customary use and working of
said railway, and the machinery thereof.
And that thereafterwards in accordance with the provisions of
said mortgage, said George F. Emery having vacated his position
as trustee, under the same, said Nathan Webb, on the seventeenth
(17th) day of October, A. D. 1877, was duly appointed by the Hon.
Nathan Clifford, Justice of the Supreme Court of the United States,
allotted to the first, trustee under said mortgage in the place of
said Emery, by the instrument of said Nathan Clifford, under his
hand and seal, dated the said seventeenth (17th) day of October,
and duly recorded in the office of the secretary of state for the
State of New Hampshire and in each of the registries of deeds in
the several counties, both in the States of Maine and New Hamp¬
shire, through which the said railroad extends.
And thereafterwards, to wit, on the 24th day of March, A. D.
1884, said George F. Emery, by his deed under his hand and seal
and duly acknowledged, conveyed to said Nathan Webb to hold as
successor to said Emery in said trust, all the interests of said Emery
under said trust; which said deed has been duly recorded in the
office of the secretary of state for the State of New Hampshire,
and in each of the registries of deeds in the various counties in the
States of Maine and New Hampshire through which said railroad
extends.
That thereafterwards, on the twenty-fifth (25th) day of Febru¬
ary, in the year of our Lord 1884, said railroad corporation duly
conveyed by deed to said Spring, Milliken and Webb, as such trus¬
tees, and for the purposes and on the conditions of said mortgage
deed, dated November first (1st), 1871, all the rolling stock, rail¬
road supplies, fuel and other personal property of said railroad cor¬
poration, which said last dated instrument has been duly recorded
in the office of the city clerk of the city of Portland, and in the
194
offices of the various towns and incorporated places within the
State of New Hampshire through which said railroad extends; and
that by sundry deeds, duly acknowledged and recorded in the reg¬
istry of deeds for the County of Cumberland, said Portland and
Ogdensburg Railroad Company has conveyed to said Spring, Milli-
ken and Webb, as such trustees, for the purposes and upon the con¬
ditions of said mortgage deed, dated November first (1st), A. D.
1871, sundry parcels of real estate acquired by said Portland and
Ogdensburg Railroad Company within the city of Portland and
town of Deering, in the county of Cumberland, as will more par¬
ticularly appear by said deeds in court to be produced and filed as
part of the evidence in this cause, including therein the lot of land
in said Portland occupied by the offices of said corporation, and
another lot of land in said Portland acquired by said corporation
from the estate of John B. Brown, on the first day of April, A. D.
1882, and another lot of land in said Deering, where the engine-
y O? O
house of said corporation is located.
That by means of all said mortgages and conveyances, said
Spring, Milliken and Webb, as such trustees now hold for the ben¬
efit of the holders of the bonds described in said mortgage, dated
November first, A. D. 1871, all the property, real and personal, and
franchises of said Portland and Ogdensburg Railway Corporation ;
that all said mortgages and conveyances were duly authorized and
ratified by the special acts of the legislature of Maine, approved
February 28, A. D. 1868, entitled 44 An act additional to an act to
incorporate the Portland and Ogdensburg Railroad Company," and
by the act of the same legislature, approved on the 15th day of
February, A. D. 1871, entitled "An act additional to and amenda¬
tory of an act entitled 4 An act to incorporate the Portland and
Ogdensburg Railroad Company/ " and by an act of the same leg¬
islature approved February 27th, A. D. 1872, entitled 44 An act to
authorize the citv of Portland to grant further aid in the construe-
«/ o
tion of the Portland and Ogdensburg Railroad Company," and by
the act of the same legislature, approved February 19t-h, 1875,
entitled 44 An act amendatory of and additional to an act entitled
4 An act additional to an act to incorporate the Portland and Og¬
densburg Railroad Company/ " and by an act of the legislature of
New Hampshire, approved July 7th, A. D. 1869, entitled 44 An act
to grant a right of way through this State to the Portland and Og-
195
densburg Railroad Corporation," and by an act of the same legis¬
lature of New Hampshire, approved July 14, A. D. 1871, entitled
" An act additional to an act entitled £ An act to grant a right of
way through this State to the Portland and Ogdensburg Railroad
Corporation ;" and that by virtue of all said legislation, mortgages
and deeds, said Portland and Ogdensburg Railroad Company wheth¬
er in the State of Maine or in the State of New Hampshire, is in
substance and essence but one corporation, subject, nevertheless, to
the jurisdiction alike of the courts having jurisdiction in the State
of Maine and of those having jurisdiction in the State of New
Hampshire; and the franchise to locate, construct, maintain, oper¬
ate and take tolls upon and from the line of railroad owned or
which may be owned by said Portland and Ogdensburg Railroad
Company in and from said city of Portland, extending through said
States of Maine and New Hampshire, to the east line of the State
of Vermont, is but a single and indivisable franchise; and that said
mortgages and deeds vest in said Spring, Milliken and Webb, as
such trustees, a single and indivisable right and interest, to be held
and availed of by them and their successors for the benefit of the
bondholders secured thereby without distinction, separation or divi¬
sion as between any parts of said property and franchise lying in
the State of Maine or lying in the State of New Hampshire ; that
the purpose of said legislation was to establish a consolidated and
indivisable line of railway from said Atlantic ocean to said east line
of the State of Vermont; and that in pursuance of the same, said
railroad and its appurtenances have been so established as a consol¬
idated and indivisable line from said Atlantic ocean to said east line
of the State of Vermont.
And said city of Portland further represents, that the value of
each and every part of said line is very much enhanced by its
union and consolidation with the other parts thereof; that to break
up and divide said line would very much diminish and impair the
value of each and every part thereof; that the portion of said line
covered by the mortgage, dated the first day of November, A. D.
1870, set out in the complainants' bill, is the more valuable portion
of said line, and is worth several hundred thousand dollars over
and above the incumbrances thereon, including said mortgage dated
the said first day of November, A. D. 1870 ; and that it would be
of great injury to the property and franchises mortgaged to said
Spring, Milliken and Webb, as aforesaid, and impracticable to break
up and divide the same by separate foreclosures of any part there¬
of, as now prayed for in the bill in this cause.
And said city of Portland further represents that, as appears by
the allegations of the bill in this cause, it never has been ascer¬
tained and your petitioner is unable to say and it nowhere appears
in complainants' bill what portion of the cars, engines, movable
furniture and machinery now upon said railroad and used in con¬
nection therewith, appertains to and is covered by said mortgage,
dated November first, A. D. 1871, and that a foreclosure of said
mortgage dated November first, A. D. 1871, could not be com¬
plete, nor the rights of your petitioner and of other holders of
bonds secured thereby, correctly ascertained, unless said Philip H.
Brown, who, with said Milliken and Spring, are trustees under said
mortgage of November first, A. D. 1870, is made party to said bill.
And your petitioner further represents that, in pursuance of said
act of the legislature of Maine, approved on the 19th day of Feb¬
ruary, A. D. 1875, said Portland and Ogdensburg Railroad Com¬
pany, in connection with other railroad corporations, was author¬
ized by said act, by its joint mortgage, bearing the apparent date
of the first day of January, A. D. 1875, but really executed and
delivered December 21st, A. D. 1875, to mortgage to Israel Wash¬
burn, Jr., and Philip Henry Brown of Portland, in the State of
Maine, and Luke P. Poland of St. Johnsbury, in the State of Ver¬
mont, subject to said prior mortgages of November 1st, A. D. 1870,
and of November 1st, 1871, its line of railway and all its franchises
and appurtenances, within the States of Maine and New Hampshire,
which mortgage was duly executed and recorded in the office of
the secretary of state for the State of New Hampshire, and within
the several counties of the States of Maine and New Hampshire
through which the road extends, and which mortgage was executed
to secure the issue of certain negotiable bonds given by said Port¬
land and Ogdensburg Railroad Company, jointly with other railroad
corporations, as provided in said act of A. D. 1875, and there has
been sold and are now outstanding, secured by the lien of said mort¬
gage, bonds to the amount of about sixty thousand ($60,000) dol¬
lars, the precise amount thereof not being known to your petition¬
er; that said mortgage to said Washburn, Brown and Poland is a
lien upon all said line of railway, its franchises and appurtenances,
197
subject to the prior mortgages aforesaid ; that said Washburn is
deceased and no person has been appointed his successor; and that
an effectual foreclosure of the mortgage dated November 1st, A.
D. 1871, cannot be made unless said Brown and said Poland, trus¬
tees, as aforesaid, are made parties to this bill.
And your petitioner further represents that Alonzo P. Carpen¬
ter, a citizen of the State of New Hampshire, residing at Bath, in
said State of New Hampshire, did set up against said Portland and
Ogdensburg Railroad Company certain claims as appurtenant to
him, said Carpenter, and did upon the 5th day of October, A. D.
1883, cause to be issued against said Portland and Ogdensburg
Railroad Company, from the Supreme Court of the State of New
Hampshire, its writ of attachment in favor of said Carpenter, dated
on said 5th day of October, and returnable before said Supreme
Court, within the County of Coos, on the third Tuesday of April,
A. D. 1883 ; and did, by virtue of said writ, on the 26th day of
February, A. D. 1884, cause to be attached the right, title aud in¬
terest of said Portland and Ogdensburg Railroad Company to its
land and railroad within the town of Dalton, in said State of New
Hampshire which said writ was afterwards entered in said Supreme
Court, and is now pending therein; and that said Alonzo P. Car¬
penter claims that his said attachment to said portion of said rail¬
way lying in said town of Dalton and which extends from Scott's
Mills in the town of Dalton to the east line of the State of Ver¬
mont, being about two and one-half (2 1-2) miles, and the lands
and other appurtenances thereof, is prior to and supersedes said
mortgage of November 1st, A. D. 1871.
But your petitioner represents that said claim of said Alonzo P.
Carpenter is not valid; and that the said mortgage of November
1st, A. D. 1871, is prior to and supersedes the attachment as afore¬
said ; but that an effectual foreclosure of said mortgage cannot be
made unless said Alonzo P. Carpenter is made a party to this bill.
Wherefore your petitioner prays that it may be allowed to amend
said bill by setting out the facts hereinbefore set out, and may be
further allowed to amend said bill by changing and adding to the
prayer thereof, so as to pray that this Honorable Court will decree
a foreclosure of the whole of said railroad within the States of
Maine and New Hampshire, with all its franchises and appurte¬
nances, and all other property embraced in said mortgages and
198
deeds to said Spring, Milliken and Webb, as such trustees, and to,
further amend said bill by making said Alonzo P. Carpenter, Philip
Henry Brown and Luke P. Poland, parties defendant thereto ; and
by further adding to the prayer thereof that said Alonzo P. Car¬
penter may be restrained and enjoined from setting up any claim
as aforesaid, as against said Spring, Milliken and Webb, as such
trustees, and their successors, and as against all persons claiming
by, through or under the mortgages and deeds to said Spring, Mil¬
liken and Webb, as such trustees ; and by further adding to said
prayer that the Court will ascertain and decree what portion of the
rolling stock and other furniture, machinery and equipment of said
Railroad Company is held by said mortgage dated the first day of
November, A. D. 1870 ; and by further amending said prayer so
that said Poland and Brown, as trustees under said mortgage to said
Poland, Brown and Washburn, and all persons claiming by, through
or under them, as such trustees, or under said mortgage, as well as
said Portland and Ogdensburg Railroad Company and said x\lonzo
P. Carpenter may be forever barred and foreclosed by the decrees
of this Honorable Court in the premises.
And your Honors further represent, that said Luke P. Poland is
a citizen of the State of Vermont, and said Philip Henry Brown is
a citizen of the State of Maine, and that both of them are out of
jurisdiction of this Honorable Court; and that, whereas this suit
has been commenced to enforce a lien upon and claim to, and re¬
move clouds from the title of the said franchises and said real and
personal property within the district of New Hampshire, and said
Philip Henry Brown and Luke P. Poland are not inhabitants of,
nor found within said district of New Hampshire, and do not vol¬
untarily appear in this suit.
Wherefore your petitioner prays that this Honorable Court will
make an order directing said Philip Henry Brown and Luke P. Po¬
land to appear, plead, answer and demur by a day certain, to be
designated, to be served upon said Luke P. Poland and Philip
Henry Brown, in such manner as this Honorable Court may deter¬
mine.
CITY OF PORTLAND, by William H. Looney, its Solicitor.
190
[seal.] CITY OF PORTLAND.
in board of mayor and aldermen, 1
May 5th, 1884. j
Ordered, That, the Mayor be and he is hereby authorized to take
all necessary steps to intervene in behalf of the city in the suit
brought by the Mercantile Trust Co. against the Portland and
Ogdensburg Railroad Co. and others, and to protect the interest of
the city therein.
Read, passed and sent down for concurrence. Concurred, ap¬
proved, May 6th.
A true copy of record.
City Records, Vol. 21, p. 439.
Attest, GEO. C. BURGESS, City Clerk.
. PETITION OF CITY OF PORTLAND FOR LEAVE TO
INTERVENE.
FILED JUNE 4, 1884.
CIRCUIT COURT OF THE UNITED STATES.
district of new hampshire.
Mercantile Trust Company
vs.
The Portland and Ogdensburg Railroad Co. et als.
To the Honorable Justice of said Court:
And now comes the city of Portland, a civic corporation, author¬
ized and established by the laws of the State of Maine, within the
County of Cumberland, in said State of Maine, and respectfully
represents that the legislature of said State of Maine, by an act
approved the 27th day of February, A. D. 1872, entitled " An act
to authorize the city of Portland to grant further aid, in the con¬
struction of the Portland & Ogdensburg Railroad," was authorized
to issue its scrip in aid of the construction of said railway for an
amount not exceeding two million, five hundred thousand ($2,500,-
000) dollars ; and thereupon to receive from the said Portland &
200
Ogdensburg Railroad Co. its obligation in a penal sum, with the
condition that the company would duly pay the interest and prin¬
cipal of said scrip and hold the said city harmless against all loss,
expenditure on account of the issue and delivery of the same.
And said city by said act was further authorized to receive as
further security for the issue and delivery of said scrip, the mort¬
gage bonds of said Portland & Ogdensburg Railroad Co. issued and
bearing date on the first day of November, A. D. 1871, and se¬
cured by a deed of trust and mortgage of said railroad and the
franchises and property of said company of the same date, there¬
tofore executed and delivered by said railroad company to trustees
for the benefit of the holders of the mortgage bonds aforesaid, the
amount of said mortgage bonds so to be received by said city to
be equal to the amount of scrip issued and delivered by the city
as aforesaid, and said mortgage bonds to be held as collateral secu¬
rity for the obligation given by the company aforesaid to said city.
That thereafterwards in accordance with said act, said city did
issue its scrip to the amount of one million, three hundred and fifty
thousand ($1,350,000) dollars, and received from said company the
obligation as provided in said act, and also as collateral security
thereto, mortgage bonds as aforesaid, of the principal sum of one
million three hundred and fifty thousand ($1,350,000) dollars, with
interest thereon becoming due and payable on and after the first
day of May, A. D. 1872.
That said mortgage bonds so received by said city are a part of
the mortgage bonds secured by the mortgage given by said rail¬
road company to Samuel E. Spring, Weston F. Milliken and George
F. Emery, dated the first day of November, A. X). 1871, set out in
the complainants' bill in this cause, and the said mortgage bonds
are of the same class and issue, and secured by the same mortgage
as the bond of the complainant in this cause.
That thereafterwards, on or about the first day of March, A. D.
1876, the said Portland & Ogdensburg Railroad Company defaulted
and failed to provide for the said scrip of the city of Portland, or
interest thereon; and said city of Portland was thereafterwards
compelled to pay and did pay from its own funds the principal and
interest of said scrip as the same fell due, with reimbursement of
no part thereof by the said Portland & Ogdensburg Railroad Com¬
pany, whereby the said city of Portland became entitled to proceed
201
by law and equity to realize and make available the collateral se¬
curity aforesaid.
In consideration whereof, by authority of votes of the City
Council of Portland, passed on the nineteenth day of February,
A. D. 1881, and of said Portland & Ogdensburg Kailroad Company
passed on the nineteenth day of February, A. D. 1881, the said
Portland & Ogdensburg Railroad Co. transferring to and vested in
the said city of Portland a full, complete, absolute and incondi-
tional title to the mortgage bonds aforesaid, and the coupons at¬
tached thereto ; and the said city of Portland thereupon assumed
the payment of the scrip issued by said city and the interest thereon ;
so that thereby said city of Portland became and has ever since
been the absolute and unconditional owner of said mortgage bonds,
to wit, to the amount of the principal of one million three hundred
and fifty thousand ($1,350,000) dollars, and interest thereon, be¬
coming payable on or after the first day of May, A. D. 1872.
Whereby said city of Portland is entitled by the frame of the
complainants' bill in this cause, to intervene for its own protection
as complainant in said cause, and become a party to the prosecution
thereto, hereby agreeing to contribute to the expense of said prose¬
cution, its proper proportion.
Wherefore said city of Portland in accordance with the vote of
said City Council, passed on the fifth day of May, A. D. 1884, a
copy of which is hereto attached, prays that it may be allowed to
join as complainant in the above cause.
CITY OF PORTLAND, by Marquis F. King, Mayor of the
City of Portland.
And by W. H. LOONEY, its Solicitor.
State of Maine.
county of Cumberland : June 3d, 1884.
Personally appeared William H. Looney of Portland, County of
Cumberland, State of Maine, and says that he is General Solicitor
of the city of Portland, in said County and State; that he has
read the foregoing petition, and knows the contents thereof; that
he has informed himself in reference to the allegations therein ;
202
and that according to his best knowledge, information and belief
the same are true. Before me,
[seal.] FRANKLIN C. PAYSON, Notary Public for said
County of Cumberland.
COMPLAINANT'S PROTEST.
FILED APRIL 19, 1884. [AS OF APRIL 1, 1884.]
CIRCUIT COURT OF THE UNITED STATES.
district of new hampshire.
IN EQUITY.
Mercantile Trust Company
vs.
The Portland and Ogdensburg Railroad Co. et als.
The complainants in this cause respectfully protest against the appoint¬
ment of a Receiver therein upon the motion of the defendants, and espec¬
ially against the appointment as such Receiver of the President of the
defendant corporation.
And they likewise respectfully protest against any order granting to
such or any receiver the authority to issue certificates of indebtedness,
which shall became a lien in charge upon the property embraced within
the mortgage sought by the complainants to be foreclosed in this case, and
that shall be prior or precedent in right of payment as an incumbrance
upon said property to the said mortgage.
And they further and especially protest against the granting of author¬
ity to said receiver to expend the proceeds of such certificates (if against
the opposition of the complainants the same are to be issued at all) upon
a railroad in the State of Maine, beyond the jurisdiction of the Court in
this cause, and not forming part of the property in respect to which any
foreclosure or relief is demanded in this cause.
By NOBLE & SMITH, Complainant's Solicitors.
203
DECREE APPOINTING RECEIVER, &c.
FILED APRIL 21, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
IN EQUITY.
Mercantile Trust Company
vs.
The Portland and Ogdenshurg Railroad Co. et als.
On motion for appointment of receiver.
DECREE.
This motion was heard and argued by counsel, the Mercantile Trust
Company appearing in opposition to the same, and it was made to appear
that the appointment of a receiver and the powers given to him by the
Supreme Judical Court of Maine, by a decree filed in said Court March
27th, 1884, a copy of which is filed in this cause, were assented to by the
city of Portland and other holders of bonds, owning not less than one
million five hundred and ninety thousand dollars ($1,590,000). of mort¬
gage bonds issued under the mortgage dated November 1st, 1871, and
were not objected to by the trustees of the mortgage dated November 1st,
1870, and that the Portland & Ogdenshurg Railroad Company assented
thereto—it is hereby ordered, adjudged and decreed that the appointment
of Samuel J. Anderson as receiver of the railroad of the Portland & Og¬
denshurg Railroad Company, and of its franchises and appurtenances,
and of all other assets of said corporation, as made by the Supreme Judi¬
cial Court of Maine, as aforesaid, is ratified and confirmed, and it is furth¬
er ordered that said Anderson file a stipulation appointing an attorney
irrevocable, resident in Portsmouth or Concord in the State of New Hamp¬
shire (or near one of these cities) to receive all notices and orders in the
place of the receiver in this Court.
And it is further ordered that said receiver file in this Court duplicates
of all accounts and reports filed, or which may be hereafter filed, by him
in the Supreme Judicial Court of Maine.
And it is further ordered that consent is hereby given to the issue of
certificates by said receiver, for the necessary repairs and renewals of
tracks and bridges, as authorized by said decree of the Supreme Judicial
Court of Maine, but that not more than one hundred thousand dollars
($100,000) shall be issued until further order of this Court.
204
And it is further ordered that said certificates shall be a first lien on all
property of said railroad corporation, but more especially, except and un¬
til otherwise ordered, on its net earnings.
And it is further ordered that the earnings of said railroad shall be ap¬
plied as is ordered by said decree of the Supreme Judical Court of Maine,
and not otherwise until further order.
JOHN LOWELL, Circuit Judge.
WILLIAM L. PUTNAM, Solicitor.
MOTION FOR ENLARGEMENT OF DECREE AUTHORIZING
ISSUE OF CERTIFICATES BY RECEIVER.
FILED APRIL 21, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
in equity.
Mercantile Trust Company
vs.
The Portland and Ogdensburg Railroad Co. et als.
A decree having been entered on the 8th day of April, A. D.
1884, by the CouH confirming the appointment of Samuel J. An¬
derson as receiver, of the defendant railroad, and authorizing the
issue of receivers' certificates and limiting the amount of the same
to one hundred thousand dollars until the further order of the
court. And it appearing to said receiver on further examination
of said road, including the iron and bridges on the same, that a fur¬
ther sum is needed to put said road in condition to operate the
same advantageously and safely during the present year, the un¬
dersigned receiver as aforesaid now comes and move this Honor¬
able Court to enlarge said decree so as to authorize the issue of
receiver's certificates to the additional amount of one hundred
thousand dollars.
SAM. J. ANDERSON, Receiver.
205
IN THE CIRCUIT COURT OF THE UNITED STATES
FOR THE DISTRICT OF NEW HAMPSHIRE.
April 21, 1884.
Upon reading the foregoing motion, it is ordered by the Court
that a hearing upon the same be had at the United States Court
House in Portsmouth on the first day of the May term of this
Court, to wit, on the eight day of May, 1884, and that notice there¬
of be given to J. W. Fellows, Esq., solicitor for the plaintiff in the
before entitled suit by the clerk sending him, through the mail, a
copy of this motion and of this order thereon forthwith.
Attest, WILLIAM H. HACKETT, Clerk.
April 21, 1884.
I forwarded to J. W. Fellows, Esq., of Manchester, an attested
copy of the foregoing motion and order therein depositing same in
post office in Portsmouth before closing and departure of the after¬
noon mail for Manchester this day.
WILLIAM H. HACKETT, Clerk.
MOTION TO VACATE RECEIVERSHIP ORDER.
FILED JUNE 4, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
IN EQUITY.
Mercantile Trust Company
vs.
The Portland and Ogdenshurg Railroad Co.
May Term, 1884.
And now the complainants come and respectfully move the
Court to vacate and discharge the order heretofore made in this
20G
cause ratifying or confirming the appointment of a receiver therein,
and to vacate and discharge the receivership thereby created, if
any such is thereby created, and under which S. J. Anderson, the
president of the defendant corporation, claims to be or to act as a
receiver in this cause. For reasons apparent on the face of the said
order.
And because no just ground or necessity for any receivership is
or has been made to appear in the cause. Because it appears from
all the proceedings in respect thereto, that the sole object which it
is sought is to enable the defendants to impose charges upon the
mortgaged property in priority to the complainant's receipt and
against their consent, to a large amount. Because said alleged re¬
ceiver is the virtual defendant in the cause, and hostile to the com¬
plainants, and is shown by the record to have been engaged in the
misapplication of the earnings of the said property complained of
in the bill, and to redress which the said bill is in part intended.
The prayer therein for a receiver being expressed to be for the
purpose of placing said property, pending the suit, in the hands
of an impartial receiver, by whom a just and fair application of
such earnings would be made. And because, as the complainants
respectfully insist, it is not according to the rules of equity procedure
that the defendants should be allowed to have a receivership ad¬
verse to complainant imposed upon the complainant upon the
circumstances and facts approved in this cause, and to the embarrass¬
ment of the remedy they wish to obtain.
By GUY C. NOBLE, Solicitor.
E. J. PHELPS, of Counsel.
207
MOTION TO DISMISS PETITION OF CITY OF PORTLAND.
FILED JUNE 4, 1884.
CIRCUIT COURT OF THE UNITED STATES.
DISTRICT OF NEW HAMPSHIRE.
IN EQUITY.
Mercantile Trust Company
vs.
The Portland and Ogdenshurg Railroad Co.
May Term, 1884.
And now the complainants come and respectfully move the Court
that the supplementary petition filed by the city of Portland in this
cause may be dismissed for reasons apparent upon said petition in
connection with the record in the cause. And move especially be¬
cause as the complainants insist, the filing and allowance of said
petition are contrary to the rules of procedure in equity, and in
violation of the rights of complainants. Because the effect of the
same is materially to enlarge and change the scope and prayer of
the complainants' bill, and to extend the application of the same
to other and near parties not made parties to the complainants'
bill and unnecessary thereto, and to other and different property
not sought to be reached or affected by the complainants' bill.
Whereby the condition of the complainants' cause, and the scope
and effect thereof, and the relief thereby sought are in effect taken
out of the complainants' control and placed in the control of par¬
ties shown by the record to be hostile and adverse in interest to
the complainants.
And also because the said petition even if allowable and proper
at all is too late to be even interposed, after the^ proofs in the
causes are complete and the same ripe for hearing, and after so
long delay on the part of said petitioners in asserting their claims
if any they have.
By GUY C. NOBLE, Sol.
E. J. PHELPS, of Counsel.
208
Order of Notice upon the Trustees of the Bondholders under the
severed mortgages served by order of Court June 4, 1884.
CIRCUIT COURT OF THE UNITED STATES.
FIRST CIRCUIT. DISTRICT OF NEW HAMPSHIRE, SS.
IN EQUITY NO. l>]2.
Mercantile Trust Company, complainants,
vs.
The Portland and Ogdenshurg Railroad Comgjany and Samuel E.
Spring, Weston F. Milliken and Nathan Webb, trustees, etc.
And now on the fourth day of June, A. D. 1884, upon the peti¬
tion of the city of Portland in the State of Maine, claiming to be
holders of certain mortgage bonds of the Portland and Ogdenshurg
Railroad Company to the amount of one million three hundred and
fifty thousand dollars, and that it is entitled by the frame of the
complainants' bill in this cause, to intervene for its own protection
as complainant in said cause, and become a party to the prosecu¬
tion thereof, agreeing to contribute to the expenses of said prose¬
cution its proper proportion. And it further appearing to the
Court, that a mortgage was executed by said Portland and Ogdens¬
hurg Railroad Company to secure the amount of eight hundred
thousand dollars of the bonds of said company to Woodbury Davis,
Samuel E. Spring and Weston F. Milliken and disted November
first, A. D. 1870, that said Woodbury Davis, thereafterwards de¬
ceased, and Philip H. Brown of Portland aforesaid, in accordance
with the terms of said mortgages was duly constituted and ap¬
pointed his successor as trustee, under said mortgage, and that
thereafterwards proper deeds to said Brown were duly executed to
constitute him such successor in said trust, and he is now in said
office as trustee. And furthermore that said Portland and Ogdens-
burg Railroad Company, in connection with the Essex County
Railroad Company, the Montpelier and St. Johnsbury Railroad
Company, the Lamoille Valley Railroad Company and the Lamoille
Valley Junction Railroad Company, corporations created by the
statutes of Vermont, did in or about the first day of January, A.
209
D. 1875, arrange to issue certain joint bonds and in order to secure
the same, all said corporations named, with said Portland and Og-
densburg Railroad Company executed a certain other mortgage
dated January first, 1875, to said Philip H. Brown, Israel Wash¬
burn, Jr., then of Portland, since deceased, and Luke P. Poland of
St. Johnsbury in the district of Vermont, a copy of which mort¬
gage has been here in Court produced and that there is still out¬
standing, secured by said mortgage, the amount of sixty thousand
dollars of said bonds or about that sum, which said mortgage is a
lien on the line of the railway of the Portland and Ogdensburg
Railroad Company. That no person has been appointed as the suc¬
cessor of said Washburn deceased, and that no effectual foreclosure
of the mortgage on said railroad dated November 1, 1871, can be
made, unless said Brown and said Poland, trustees, as aforesaid, are
made parties to this bill, and the said city of Portland having
prayed that said Philip Henry Brown and said Luke P. Poland be
made parties defendant to the bill filed in this cause, and for other
relief, that any and all clouds may be removed from the title of
said franchises and the real and personal property within the dis¬
trict of New Hampshire and it also appearing that said Philip
Henry Brown and said Luke P. Poland are neither of them an in¬
habitant or found within the district of New Hampshire, and have
not voluntarily appeared thereto.
It is ordered that Samuel E. Spring, Weston F. Milliken and
Philip Henry Brown, trustees under the mortgage of said Portland
and Ogdensburg Railroad Company, dated November 1, 1870; said
Samuel E. Spring, Weston F. Milliken and Nathan Webb, trustees
under the mortgage of said railroad, dated November 1 1871, and
said Philip Henry Brown and Luke P. Poland, surviving trustees
under the said mortgage of said railroad, dated January 1, 1875,
hereinbefore recited and referred to, and each and every of them
be required to plead, answer or demur to the petition hereinbe¬
fore referred to, and to the bill of complaint filed in this cause, on
or before the twenty-fifth day of June, A. D. 1884. And that no¬
tice of this order be served upon said Spring, Milliken, Brown,
Webb and Poland, at least fourteen days before said twenty-fifth
day of June, A. D. Eighteen hundred and eighty-four.
WILLIAM H. HACKETT, Clerk.
210
district of new Hampshire. . June 9, 1884.
I gave to Weston F. Milliken, Samuel E. Spring, Philip H. Brown
and Nathan Webb, all in the city of Portland, each an attested copy
of the foregoing precept.
WILLIAM H. HACKETT, Clerk Circuit Court.
I hereby accept service of this precept and have received a copy
thereof. LUKE P. POLAND.
June 9, 1884.
Signed at Washington, D. C., June 9, 1884, at 9 a. m. in my
presence. FRANK W. HACKETT.
DECREE AS TO ISSUE OF ADDITIONAL CERTIFICATES
BY THE RECEIVER.
FILED JUNE 5, 1884.
CIRCUIT COURT OF THE UNITED STATES.
district of new hampshire. )
IN EQUITY.
Mercantile Trust Company
vs.
The Portland and Ogdenshurg Railroad Co.
It is ordered that the decree filed in this cause 011 the twenty-first
day of April, A. D. 1884, so far as it restricts to the amount of one
hundred thousand dollars, the certificates to be issued by the receiv¬
er, and made a lien on all property of the railroad corporation be
modified so as to permit the issue of such certificates not exceed¬
ing the amount of two hundred thousand dollars in the whole,
including those already issued.
[seal] HORACE GRAY,
Associate Justice of the Supreme Court of the United States.
211
Copy of Deed from P. & 0. P. R. Co. to Spring, et als.,
Trustees, of Land in Portland, April 1, 1882.
KNOW ALL MEN BY THESE PRESENTS,
That the Portland and Ogdensburg Railroad Company, a corporation
established under the laws of the State of Maine, having its principal
office for the transaction of its business, at Portland, Maine, in considera¬
tion of one dollar paid by Samuel E. Spring, Weston F. Milliken and
Nathan Webb, all of Portland, in the County of Cumberland and State
of Maine, the receipt whereof it doth hereby acknowledge, do hereby re¬
mise, release, bargain, sell and convey, unto the said Samuel E. Spring,
Weston F. Milliken and Nathan Webb, their survivors and successors as
trustees in trust, for the purposes hereinafter named, that parcel of land
and flats situated in said Portland and particularly described in a deed of
even date herewith, from John Rand, Philip H. Brown and John M.
Brown, as Trustees of the estate of John B. Brown to said corporation, to
which deed reference is hereby made for a more particular description.
To be held by said Grantees in trust as Trustees, under a certain mort¬
gage from said Grantor to said Samuel E. Spring and Weston F. Milliken
and to George F. Emery now succeeded by said Nathan Webb, dated No¬
vember first, A. D. 1871, recorded in the Cumberland Registry of Deeds,
Book 389, Page 130, and as additional security for the debts secured there-
bjy and especially for the purposes and trusts expressed therein and as
part of the trust property under the same.
To Have and to Hold the same, together with all the privileges and
appurtenances thereunto belonging, to them the said Grantees their sur¬
vivors and successors in trust as aforesaid.
In Witness Whereof, the said Portland and Ogdensburg Company, by
Samuel J. Anderson, its President, duly authorized, has hereunto set its
name and seal this first day of April, in the year of our Lord one thous¬
and eight hundred and eighty-two.
Signed, Sealed and Delivered in presence of
T. H. Haskell.
Portland and Ogdensburg Railroad Company, By [seal]
SAMUEL J. ANDERSON,
President.
Countersigned, JNO. W. DANA,
Treasurer.
212
Cumberland, ss. April 6th, 1882.
Personally appeared the above named Samuel J. Anderson above named,
and acknowledged the above instrument to be the free act and deed of
said Portland and Ogdensburg Company.
Before me, T. H. Haskell,
Justice of the Peace.
Cumberland, ss. Registry of Deeds.
Received April 6th, 1882, at 4 o'clock 52 m. P. M., and recorded in
Book 481, Page 426.
Attest, , Frank G. Stevens,
Register.
Cumberland, ss. Registry of Deeds.
The within is a true copy as recorded in Book 481, Page 426.
Attest, , Leander E. Cram,
Register.
Copy of Deed from P. & 0. R. R. Co. to Spring, et als.,
Trustees, of Land in Portland, May 15, 1882.
KNOW ALL MEN BY THESE PRESENTS,
That the Portland and Ogdensburg Railroad Company, a corporation
established under the laws of the State of Maine, in consideration of one
dollar paid by Samuel E. Spring, Weston F. Milliken and Nathan Webb,
all of Portland, in the County of Cumberland and State of Maine, the re¬
ceipt whereof it doth hereby acknowledge, doth hereby remise, release,
bargain, sell, and convey, and forever quitclaim unto the said Spring, Mil-
liken and Webb, their survivors and successors as trustees in trust, for the
purposes hereinafter named, that parcel of real estate situated on the
northerly side of Commercial Street, in said Portland, particularly de¬
scribed in the deed of Joseph Walker to said corporation, dated May 15th,
1882, to which reference is hereby made for particular description of the
premises.
To be held by said Grantees as trustees in trust, under a certain mort¬
gage of said Grantor to said Samuel E. Spring and Weston F. Milliken
and to George F. Emery, now succeeded by said Nathan Webb, dated
213
November 1st, 1871, recorded in Cumberland Registry of Deeds, Book
389, Page 130, and as additional security for the debts secured thereby
and especially for the purposes and trusts expressed therein and as a part
of the trust property under the same.
To Have and to Hold the same, together with all the privileges and ap¬
purtenances thereunto belonging, to them the said Grantees their survi¬
vors and successors in trust as aforesaid.
In Witness Whereof, the said Portland and Ogdensburg Railroad Com¬
pany by Samuel J. Anderson, its President, duly authorized, has hereun¬
to set its name and seal this fifteenth day of May, in the year of our Lord
one thousand eight hundred and eighty-two.
Signed, Sealed and Delivered in presence of
T. H. Haskell.
Portland and Ogdensburg Railroad Company, By [seal]
SAM. J. ANDERSON,
President.
Countersigned, JNO. W. DANA,
Treasurer.
Cumberland, ss. May 15th, 1882.
Personally appeared the above named Samuel J. Anderson above named,
and acknowledged the above instrument to be the free act and deed of
said Portland and Ogdensburg Company.
Before me, T. H. Haskell,
Justice of the Peace.
Cumberland, ss. Registry of Deeds.
Received May 15th, 1882, at 6 o'clock 7 m. P. M., and recorded in
Book 489, Page 5.
Attest, Frank G. Stevens,
Register.
Cumberland, ss. Registry of Deeds.
The within is a true copy as recorded in Book 489, Page 5.
Attest, Leander E. Cram,
Register.
[seal] A true copy, Attest A. A. Dennett,
Clerk of the Supreme Judicial Court for Cumberland County, State of Maine.
214
Copy of Deed from Spring and Milliken, Surviving Trustees,
to Philip Henry Brown, Trustee, Dated Dec. 22, 1876.
- Whereas, the Portland and Ogdensburg Railroad Company, a
corporation established, by the legislature of the State of Maine
and authorized and empowered by the legislature of the State of
New Hampshire, to construct and extend its railroad across the
State of New Hampshire, subject to the laws thereof, relating to
railroads, and having its principal place of business at Portland, in
the County of Cumberland, did on the first day of November, in
the year of our Lord one thousand eight hundred and seventy, by
its deed of that date, duly executed and sealed with its corporate
seal and acknowledged by its President and recorded in Cumber¬
land Registry of Deeds, Book 381, Page 262, and in Oxford County
Registry of Deeds, Western District, Book 53, Page 356, and in
the office of the Secretary of State of the State of New Hamp¬
shire, in Vol. 1, " Railroad Records," Pages 445 and 450, inclusive,
and in Carroll County Registry of Deeds, in the State of New
Hampshire, Book 66, Pages 461, 462, 463 and 464, did convey to
Woodbury Davis, Samuel E. Spring and Weston F. Milliken, all of
Portland, in the County of Cumberland and State of Maine, their
survivors and successors, to be designated in manner therein pro¬
vided as joint tenants and not as tenants in common, in trust and
in mortgage.
" All that part of the railroad of said company extending and to
be extended from the terminus in Portland, in the State of Maine,
to Bartlett, in the State of New Hampshire, located and to be lo¬
cated within said limits, called the Portland and Ogdensburg Rail¬
road, including all the rights of way and lands taken and held, or
to be hereafter taken and held within said limit within the States
of Maine and New Hampshire by said company for the purposes of
its road, and all franchise of said company to build, maintain and
operate said railroad from said Portland to said Bartlett, granted,
or to be hereafter granted by said States of Maine and New Hamp¬
shire, and all the rails and superstructure of said railroad between
said limits of Portland and Bartlett, together with all the cars, en¬
gines and other movable furniture, machinery and equipments of
215
said road and all other personal property of said company apper¬
taining to and connected with the customary working of said rail¬
road and the machinery thereof/'
To have and to hold the same, with all the privileges and appur¬
tenances thereof and belonging thereto, to them the said Wood¬
bury Davis, Samuel E. Spring and Weston F. Milliken, their sur¬
vivors and successors, as joint tenants, and not as tenants in com¬
mon, upon the agreements, conditions and trusts, in said deed spe¬
cifically set forth and hereby specially referred to as part of this
recitation.
And whereas, the said Woodbury Davis, Samuel E. Spring and
Weston F. Milliken, respectively, in testimony of their acceptance
of the grants and trusts in said deed made, created and declared,
did on the same first day of November, in the year one thousand
eight hundred and seventy, set their hand and seal to the same
instrument.
And whereas, by said deed, with other things, it was expressly
provided and declared;
" That whenever a vacancy shall occur in the number of trustees
hereby appointed, or of their successors, by the death, resignation,
permanent disability or removal from this State, any one of them,
whether before or after the acceptance of the trust hereof, the sur¬
viving and remaining trustees shall immediately take measures to
prove the fact of such vacancy to the Honorable Nathan Clifford,
or to his successor for the time being, in the office of the Justice
of the Supreme Court of the United States, allotted to the First
Judicial Circuit, and procure the said Justice to nominate and ap¬
point in writing some suitable person, an inhabitant of the State of
Maine, to supply such vacancy, and to certify such nomination and
appointment upon the back of this deed, and the said surviving and
remaining trustees shall make such nomination and appointment
known to the directors of said company without unreasonable delay
and any person so appointed, upon his acceptance of said trust,
shall succeed to and have all the powers of the trustee in whose
place he shall be appointed."
" And as often as any new trustee or trustees hereof shall be
appointed, all the estate, property and interest, which shall be for
the time being holden upon the trusts hereof, shall thereupon be
so conveyed, assigned and transferred by the acting trustee or
216
trustees, as that the same shall vest and be holden jointly, by all
said trustees, to and for the same trusts and upon the same condi¬
tions and subject to the same powers and provisions as are herein
contained and declared of and concerning the premises and the
trustees named in this instrument, so far as the same trusts and
conditions, powers and provisions shall then be substituting and
capable of taking effect."
And whereas, said Woodbury Davis, named as aforesaid in said
deed as trustee, has, since the date of said deed, deceased, and
thereupon said Samuel E. Spring and said Weston F. Milliken, on
the twelfth day of December, A. D. 1876, gave to the Honorable
Nathan Clifford, notice in writing, of the vacancy in said board of
trustees, occasioned by the decease of said Woodbury Davis, and
requested him in the exercise of the power and authority with
which under said deed he was vested to nominate and appoint in
writing Philip Henry Brown, inhabitant of Portland, State of Maine,
or some other suitable person, an inhabitant of said State of Maine,
a trustee under said mortgage to supply the vacancy so created by
the death of said Davis.
And whereas, the said Nathan Clifford, upon the notice and re¬
quest aforesaid of said surviving trustees, Spring and Milliken, on
the eighteenth day of December, in the year of our Lord one thou¬
sand eight hundred and seventy-six, by indorsement in writing
under his hand and seal, written on the back of the aforesaid origi¬
nal deed, did nominate and appoint Philip Henry Brown, of Port¬
land, in the County of Cumberland and State of Maine, a trustee
to fill the vacancy aforesaid, created by the said death of Wood¬
bury Davis, and the said Samuel E. Spring and Weston F. Milliken
have, as required by said deed, made known to the directors of said
railroad company, the said nomination and appointment of said
Philip Henry Brown.
Therefore, Know all Men by these Presents, That we, Samuel
E. Spring and Weston F. Milliken, both of Portland, in the County
.of Cumberland and State of Maine, surviving trustees, as aforesaid,
in consideration of the premises, and of the several trusts vested
in us, by said original deed, and of the sum of one dollar, to us
paid by Philip Henry Brown of Portland, in the County of Cum¬
berland, in the State of Maine, the receipt of which we do hereby
acknowledge, do hereby grant, bargain, sell and convey unto said
217
Philip Henry Brown, his successors and assigns, one full third part
jointly with us our successors and assigns, of all the estate, prop¬
erty and interest, now holden by us upon the trusts created and
declared in said original deed, under and by virtue of said deed and
as surviving trustees as aforesaid, to have and to hold the said
estate, property and interest, to him the said Philip Henry Brown,
his successors and assigns, as joint tenants with us our sucessors and
assigns to and for the same trusts and upon the same conditions and
subject to the same powers and provisions, as are contained and
declared of and concerning the premises, in the original deed of
trust and mortgage aforesaid from said Portland and Ogdensburg
Railroad Company to us, and the said Woodbury Davis, deceased,
so far as the same trusts, conditions, powers and provisions are now
substituting and capable of taking effect and we expressly refer to
said original deed for a full statement and exhibition of said trusts,
conditions, powers and provisions.
In Witness Whereof, We, the said Samuel E. Spring and Weston
F. Milliken, have hereunto set our hands and seals, and the said
Philip Henry Brown, in testimony of his acceptance of the said
nomination and appointment and of the grants and trusts hereby
made, created and declared, has hereunto set his hand and seal,
this twenty-second day of December, in the year of our Lord one
thousand eight hundred and seventy-six.
Signed, Sealed and Delivered
in presence of Weston F. Milliken,
Nathan Webb, to all, Samuel E. Spring,
T. H. Haskell, Philip Henry Brown,
William Henry Clifford, to P. H. B.
Benj. Webster, to S. E. S.
STATE OF MAINE.
Cumberland, ss. Dec. 22, A. D. 1876.
Personally appeared Weston F. Milliken and Samuel E. Spring,
above named, and acknowledged the above instrument to be their
free act and deed. Before me,
Nathan Webb, Justice of the Peace.
[seal]
[seal]
[seal]
218
Received February 10th, 1877, at 10 h. 45 m. A. m., and record¬
ed according to the original.
o o
Attest, Henry C. Houston, Register.
Cumberland, ss. Registry of Deeds
A true copy as recorded in Book 437, Page 23.
Attest, Leander E. Cram, Register.
A true copy. Attest, A. A. Dennett,
Cleric of the Supreme Judicial Court for Cumberland County, State
of Maine.
[seal]
219
STIPULATION AS TO CONSOLIDATED MORTGAGE.
FILED JULY 19, 1S84.
IN THE UNITED STATES CIRCUIT COURT.
FOR THE DISTRICT OF NEW HAMPSHIRE.
Mercantile Trust Co.
vs.
Portland & Ogdensburg P. R. Co.
It is hereby stipulated and agreed that a third mortgage (known
as the "consolidated mortgage"), dated January 1st, 1875, was ex¬
ecuted by the defendant railroad December 21st, 1875, to Luke P.
Poland, Israel Washburn, Jr. and Philip H. Brown, trustees, to se¬
cure the issue of bonds to the amount of $9,500,000 as stated in the
depositions of Samuel J. Anderson and Philip H. Brown, and that
said mortgage need not be printed. Said mortgage covers the en¬
tire road of defendant company and other connecting lines. It is
further agreed that Israel Washburn, Jr., one of said trustees has
deceased, and that no person has been appointed trustee in his
place.
July 17 th, 1884.
CHARLES F. LIBBY, Solicitor for P. & O. R. R. Co.
W. L. PUTNAM, for Nathan Webb, Sam. E. Sgiring and W. F.
Milliken, Trustees.
J. W. FELLOWS, Solicitor for Mer. Trust Co.
INDEX
Bill of Complaint, filed Jan. 25, 1881, 1
Demurrer, filed March 31, 1881, .... 13
Supplemental bill, filed April 20, 1882, .... 14J
Answer of P. & 0. P. defendant, filed August 7, 1882, . . 13a
Answer of Trustees, filed August 1, 1882, .... 32
Replication, filed October 2, 1882, .... 42
COMPLAINANT'S TESTIMONY.
Deposition of Elisha Newcomb, . . . . .42
" " John F. Anderson, .... 44
" " John W. Dana, . . . . .46
" " Charles H. Foye, . . . . 61
" " Jonas Hamilton, . . . . .79
" Asa W. Wilde, . ... . . 81
Stipulation as to do. . . . . . . .83
Exhibit A, . . . . . . 84
Deposition of Louis Fitzgerald, . . . . .86
" " Wm. B. Hatch, ..... 87
DEFENDANT'S TESTIMONY.
Deposition of John W. Dana, ..... 108
" " R. Stuart Chase, . . . . . 117
" " Charles H. Foye, . . . . . 122
" " Philip H. Brown, . . . . . 125
" " George E. B. Jacksen, ..... 126
" " Horatio N. Jose, . . . . . 127
" " Samuel J. Anderson, . . . . .128
APPENDIX.
Exhibit A, (Deposition of Wm. B. Hatch) 134
Exhibit B, ££ " 136
Exhibit C, " " < 141
Exhibit D, ££ " 143
Exhibit E, " " 147
Exhibit F, " " 149
Exhibit G, " ££ 151
Exhibit H, ££ ££ 160
Exhibit I, ££ <£ 161
Mortgage of Nov. 1, 1870, 164
Opinion of Lowell J., Feb. 21, 1882, 169
Statement of receipts and disbursements, Stipulation relative thereto, 171
Stipulation as to certain copies to be used as evidence, 172
Stipulation as to mortgages and deeds, 173
Stipulation as to bonds and statutes, 174
Stipulation as to trustees and plff. corporation, 175
Motion for appointment of Deceiver, 176
Copy of Bill Equity, S. J. Court, Maine, 177
Order of notice on trustees, April 20, 1882, 189
Letter of Hon. Nathan Webb, 190
Petition of City of Portland for amendment of Bill, 192
Petition by do. for leave to intervene, 199
Complainant's protest against the appointment of receiver, 202
Decree appointing receiver, 203
Petition for enlargement of decree authorizing issue of Certificates
by Receiver, and order thereon, 204
Motion to vacate Receivership order, 205
Motion by Complainant to dismiss petition of City of Portland, 207
Order of notice (June 4, 1884,) to all the trustees, 208
Decree as to additonal certificates by the receiver, 210
Copy of deed from P. & O. R. R. to Spring, et al, Trustees, Apr-1, '82, 211
Do. May 15, 1882, 212
Copy of deed of Spring, et al., surviving Trustees, to Brown, 214
Stipulation as to proof of consolidated mortgage and the vacanc}r
as Trusteeship therein, ' 219